the apex court held it is not unconstitutional to levying charges on the people for the amenities provided for the people of Bangalore = the Division Bench of the Karnataka High Court whereby the writ petitions filed by the respondents were allowed, Section 32(5A) of the Bangalore Development Authority Act, 1976 (for short, `the 1976 Act') was declared as violative of Article 14 of the Constitution, void and inoperative and the conditions incorporated in the orders passed by the Bangalore Development Authority (BDA) =whether the charges demanded by the BDA are totally disproportionate to

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7503-7537 OF 2002 Bangalore Development Authority ... Appellant versus The Air Craft Employees Cooperative Society Ltd. and others ... Respondents J U D G M E N T G. S. Singhvi, J. 1. These appeals are directed against the order of the Division Bench of the Karnataka High Court whereby the writ petitions filed by the respondents were allowed, Section 32(5A) of the Bangalore Development Authority Act, 1976 (for short, `the 1976 Act') was declared as violative of Article 14 of the Constitution, void and inoperative and the conditions incorporated in the orders passed by the Bangalore Development Authority (BDA) 2 sanctioning residential layout plans or work orders in terms of which respondents were required to pay/deposit various charges/sums specified therein were quashed and a direction was issued for refund of the amount. 2. With the formation of the new State of Mysore, it was considered necessary to have a uniform law for planned growth of land use and development and for the making and execution of town planning schemes. Therefore, the State Legislature enacted the Mysore Town and Country Planning Act, 1961 (for short, `the Town Planning Act'). The objectives of that Act were : (i) to create conditions favourable for planning and replanning of the urban and rural areas in the State of Mysore, with a view to providing full civic and social amenities for the people in the State; (ii) to stop uncontrolled development of land due to land speculation and profiteering in land; (iii) to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and (iv) to direct the future growth of populated areas in the State, 3 with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of living in the State. 3. The State of Mysore was renamed Karnataka in 1973. Thereupon, necessary consequential changes were made in the nomenclature of various enactments including the Town Planning Act. 4. Section 4 of the Town Planning Act envisages constitution of a State Town Planning Board by the State Government. By Act No.14 of 1964, the Town Planning Act was amended and Chapter I-A comprising of Sections 4-A to 4-H was inserted. These provisions enabled the State Government to issue notification and declare any area in the State to be a local planning area for the purposes of the Act and constitute the "Planning Authority" having jurisdiction over that area. Section 9(1) (unamended) imposed a duty on every Planning Authority to carry out a survey of the area within its jurisdiction, prepare and publish an outline development plan for such area and submit the same to the State 4 Government for provisional approval. In terms of Section 12(1) (unamended), an outline development plan was required to indicate the manner in which the development and improvement of the entire planning area was to be carried out and regulated. Section 19(1), as it then stood, contemplated preparation of a comprehensive development plan and submission of the same for the approval of the State Government. Section 21 (unamended) gave an indication of the factors which were to be included in the comprehensive development plan. Section 26 (unamended) imposed a duty on every Planning Authority to prepare town planning schemes incorporating therein the contents specified in sub-section (1) of that Section. For the sake of reference, these provisions are extracted below : "4-A. Declaration of Local Planning Areas, their amalgamation, sub-division, inclusion of any area in a Local Planning Area. - (1) The State Government may, by notification, declare any area in the State to be a Local Planning Area for the purposes of this Act, this Act shall apply to such area: Provided that no military cantonment or part of a military cantonment shall be included in any such area. 5 4-C. Constitution of Planning Authority. - (1) As soon as may be, after declaration of a local planning area, the State Government in consultation with the Board, may, by notification in the Official Gazette, constitute for the purposes of the performance of the functions assigned to it, an authority to be called the "Planning Authority" of that area, having jurisdiction over that area. 9. Preparation of Outline Development Plan.-(1) Every Planning Authority shall, as soon as may be, carry out a survey of the area within its jurisdiction and shall, not later than two years from the date of commencement of this Act, prepare and publish in the prescribed manner an outline development plan for such area and submit it to the State Government, through the Director, for provisional approval: Provided that on application made by a Planning Authority, the State Government may from time to time by order, extend the aforesaid period by such periods as it thinks fit. 12. Contents of Outline Development Plan.-(1) An outline development plan shall generally indicate the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated. In particular it shall include,- (a) a general land-use plan and zoning of land-use for residential, commercial, industrial, agricultural, recreational, educational and other public purposes; (b) proposals for roads and highways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority established by law in India; 6 (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf. 19. Preparation of the Comprehensive Development Plan.-(1) As soon as may be after the publication of the Outline Development Plan and the Regulations under sub-section (4) of section 13, but not later than three years from such date, every Planning Authority shall prepare in the prescribed manner a comprehensive Development Plan and submit it through the Director together with a report containing the information prescribed, to the State Government for approval: Provided that on application made by a Planning Authority, the State Government may, from time to time, by order in writing, extend the aforesaid period by such periods as it thinks fit. 21. Contents of the Comprehensive Development Plan.-(1) The comprehensive Development Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated. Such plan shall include proposals for the following namely:- (a) comprehensive zoning of land-use for the planning area, together with zoning regulations; 7 (b) complete street pattern, indicating major and minor roads, national and state high ways, and traffic circulation pattern, for meeting immediate and future requirements; (c) areas reserved for agriculture, parks, play- grounds and other recreational uses, public open spaces, public buildings and institutions and areas reserved for such other purposes as may be expedient for new civic development; (d) major road improvements; (e) areas for new housing; (f) new areas earmarked for future development and expansion; and (g) the stages by which the plan is to be carried out. (2) The report shall further contain a summary of the findings in the surveys carried out under sub-section (2) of section 19, and give relevant information and data supporting proposals in the plan and deal in detail with.- (a) acquisition of land for the purpose of implementing the plan, (b) financial responsibility connected with the proposed improvements, and (c) the manner in which these responsibilities are proposed to be met. 26. Making of town planning scheme and its contents.--(1) Subject to the provisions of this Act, a Planning Authority, for the purpose of implementing the proposals in the Comprehensive Development Plan published under sub-section (4) of section 22, may make one or more town planning schemes for the area within its jurisdiction or any part thereof. 8 (2) Such town planning scheme may make provisions for any of the following matters namely,-- (a) the laying out or re-laying out of land, either vacant or already built upon; (b) the filling up or reclamation of low-lying, swamp or unhealthy areas or levelling up of land; (c) lay-out of new streets or roads; construction, diversion, extension, alteration, improvement and stopping up of streets, roads and communications; (d) the construction, alteration and removal of buildings, bridges and other structures; (e) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets, green belts and dairies, transport facilities and public purposes of all kinds; (f) drainage inclusive of sewerage, surface or sub-soil drainage and sewage disposal; (g) lighting; (h) water supply; (i) the preservation of objects of historical or national interest or natural beauty and of buildings actually used for religious purposes; (j) the imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or specified areas may or may not be 9 appropriated, the sub-division of plots, the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs; (k) the suspension, so far as may be necessary for the proper carrying out of the scheme, of any rule, bye- law, regulation, notification or order, made or issued under any Act of the State Legislature or any of the Acts which the State Legislature is competent to amend; (l) such other matter not inconsistent with the objects of this Act as may be prescribed." 5. The 1976 Act was enacted by the State legislature in the backdrop of the decision taken at the conference of the Ministers for Housing and Urban Development held at Delhi in November 1971 that a common authority should be set up for the development of Metropolitan Cities. Before the constitution of the BDA, different authorities like the City of Bangalore Municipal Corporation, the City Improvement Trust Board, the Karnataka Industrial Area Development Board, the Housing Board and the Bangalore City Planning Authority were exercising jurisdiction over the Bangalore Metropolitan Area. Some of the functions of these authorities like development, planning etc. 10 were overlapping and creating avoidable confusion. Not only this, the intervention of multiple authorities was impeding coordinated development of the Metropolitan Area. It was, therefore, considered appropriate that a single authority like the Delhi Development Authority should be set up for the city of Bangalore and areas adjacent thereto which, in due course, would become part of the city. It was also realised that haphazard and irregular growth would continue unless checked by the development authority and it may not be possible to rectify/correct mistakes in the future. For achieving these objectives, the State legislature enacted the 1976 Act. Simultaneously, Section 81-B was inserted in the Town Planning Act for deemed dissolution of the City Planning Authority in relation to the area falling within the jurisdiction of the BDA. The preamble of the 1976 Act and the definitions of "Authority", "Amenity", "Civic amenity", "Bangalore Metropolitan Area", "Development", "Engineering operations", "Local Authority", "Means of access" contained in Section 2 thereof are reproduced below: "An Act to provide for the establishment of a Development Authority for the development of the City 11 of Bangalore and areas adjacent thereto and for matters connected therewith 2. Definitions.- In this Act, unless the context otherwise requires,- (a) "Authority" means the Bangalore Development Authority constituted under section 3; (b) "Amenity" includes road, street, lighting, drainage, public works and such other conveniences as the Government may, by notification, specify to be an amenity for the purposes of this Act; (bb) "Civic amenity" means,- (i) a market, a post office, a telephone exchange, a bank, a fair price shop, a milk booth, a school, a dispensary, a hospital, a pathological laboratory, a maternity home, a child care centre, a library, a gymnasium, a bus stand or a bus depot; (ii) a recreation centre run by the Government or the Corporation; (iii) a centre for educational, social or cultural activities established by the Central Government or the State Government or by a body established by the Central Government or the State Government ; (iv) a centre for educational, religious, social or cultural activities or for philanthropic service run by a cooperative society registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) or a society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960) or by a trust created wholly for charitable, educational or religious purposes ; 12 (v) a police station, an area office or a service station of the Corporation or the Bangalore Water Supply and Sewerage Board or the Karnataka Electricity Board ; and (vi) such other amenity as the Government may, by notification, specify; (c) "Bangalore Metropolitan Area" means the area comprising the City of Bangalore as defined in the City of Bangalore Municipal Corporation Act, 1949 (Mysore Act 69 of 1949), the areas where the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) was immediately before the commencement of this Act in force and such other areas adjacent to the aforesaid as the Government may from time to time by notification specify; (j) "Development" with its grammatical variations means the carrying out of building, engineering, or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment; (k) "Engineering operations" means formation or laying out of means of access to road; (n) "Local Authority" means a municipal corporation or a municipal council constituted or continued under any law for the time being in force; (o) "Means of access" includes any means of access whether private or public, for vehicles or for foot passengers, and includes a road;" 6. Sections 14, 15, 16, 28-A, 28-B, 28-C, 32(1) to (5A), 65, 65-B 67(1)(a) and (b) of the 1976 Act are also extracted below: 13 "14. Objects of the Authority.- The objects of the Authority shall be to promote and secure the development of the Bangalore Metropolitan Area and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of moveable and immoveable property, whether within or outside the area under its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purposes of such development and for purposes incidental thereto. 15. Power of Authority to undertake works and incur expenditure for development, etc.- (1) The Authority may,- (a) draw up detailed schemes (hereinafter referred to as "development scheme") for the development of the Bangalore Metropolitan Area ; and (b) with the previous approval of the Government, undertake from time to time any works for the development of the Bangalore Metropolitan Area and incur expenditure therefor and also for the framing and execution of development schemes. (2) The Authority may also from time to time make and take up any new or additional development schemes,- (i) on its own initiative, if satisfied of the sufficiency of its resources, or (ii) on the recommendation of the local authority if the local authority places at the disposal of the Authority the necessary funds for framing and carrying out any scheme; or (iii) otherwise. 14 (3) Notwithstanding anything in this Act or in any other law for the time being in force, the Government may, whenever it deems necessary require the Authority to take up any development scheme or work and execute it subject to such terms and conditions as may be specified by the Government. 16. Particulars to be provided for in a development scheme.- Every development scheme under section 15,- (1) shall, within the limits of the area comprised in the scheme, provide for ,- (a) the acquisition of any land which, in the opinion of the Authority, will be necessary for or affected by the execution of the scheme ; (b) laying and re-laying out all or any land including the construction and reconstruction of buildings and formation and alteration of streets ; (c) drainage, water supply and electricity ; (d) the reservation of not less than fifteen percent of the total area of the layout for public parks and playgrounds and an additional area of not less than ten percent of the total area of the layout for civic amenities. (2) may, within the limits aforesaid, provide for,- (a) raising any land which the Authority may consider expedient to raise to facilitate better drainage; (b) forming open spaces for the better ventilation of the area comprised in the scheme or any adjoining area; (c) the sanitary arrangements required ; 15 (3) may, within and without the limits aforesaid provide for the construction of houses. 28-A. Duty to maintain streets etc.- It shall be incumbent on the Authority to make reasonable and adequate provision by any means or measures which it is lawfully competent to use or take, for the following matters, namely,- (a) the maintenance, keeping in repair, lighting and cleansing of the streets formed by the Authority till such streets are vested in the Corporation; and (b) the drainage, sanitary arrangement and water supply in respect of the streets formed by the Authority. 28-B. Levy of tax on lands and buildings.- (1) Notwithstanding anything contained in this Act, the Authority may levy a tax on lands or buildings or on both, situated within its jurisdiction (hereinafter referred to as the property tax) at the same rates at which such tax is levied by the Corporation within its jurisdiction. (2) The Provisions of the Karnataka Municipal Corporations Act, 1976 (Karnataka Act 14 of 1977) shall mutatis mutandis apply to the assessment and collection of property tax. Explanation.- For the purpose of this section "property tax" means a tax simpliciter requiring no service at all and not in the nature of fee inquiring service. 28-C. Authority is deemed to be a Local Authority for levy of cesses under certain Acts.- Notwithstanding anything contained in any law for 16 the time being force the Authority shall be deemed to be a local authority for the purpose of levy and collection of,- (i) education cess under sections 16.17 and 17A of the Karnataka Compulsory Primary Education Act, 1961 (Karnataka Act 9 of 1961); (ii) health cess under sections 3,4 and 4A of the Karnataka Health Cess Act, 1962 (Karnataka Act 28 of 1962); (iii) library cess under section 30 of the Karnataka Public Libraries Act, 1965 (Karnataka Act 10 of 1965); and (iv) beggary cess under section 31 of the Karnataka Prohibition of Beggary Act, 1975 (Karnataka Act 27 of 1975). 32. Forming of new extensions or layouts or making new private streets.- (1) Notwithstanding anything to the contrary in any law for the time being in force, no person shall form or attempt to form any extension or layout for the purpose of constructing buildings thereon without the express sanction in writing of the Authority and except in accordance with such conditions as the Authority may specify: Provided that where any such extension or layout lies within the local limits of the Corporation, the Authority shall not sanction the formation of such extension or layout without the concurrence of the Corporation: Provided further that where the Corporation and the Authority do not agree on the formation of or the conditions relating to the extension or layout, the 17 matter shall be referred to the Government, whose decision thereon shall be final. (2) Any person intending to form an extension or layout or to make a new private street, shall send to the Commissioner a written application with plans and sections showing the following particulars,- (a) the laying out of the sites of the area upon streets, lands or open spaces; (b) the intended level, direction and width of the street; (c) the street alignment and the building line and the proposed sites abutting the streets; (d) the arrangement to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting the streets and for adequate drinking water supply. (3) The provisions of this Act and any rules or bye- laws made under it as to the level and width of streets and the height of buildings abutting thereon shall apply also in the case of streets referred to in sub- section (2) and all the particulars referred to in that sub-section shall be subject to the approval of the Authority. (4) Within six months after the receipt of any application under subsection (2), the Authority shall either sanction the forming of the extension or layout or making of street on such conditions as it may think fit or disallow it or ask for further information with respect to it. (5) The Authority may require the applicant to deposit, before sanctioning the application, the sums 18 necessary for meeting the expenditure for making roads, side-drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as such applicant may be called upon by the Authority, provided the applicant also agrees to transfer the ownership of the roads, drains, water supply mains and open spaces laid out by him to the Authority permanently without claiming any compensation therefor. (5A) Notwithstanding anything contained in this Act, the Authority may require the applicant to deposit before sanctioning the application such further sums in addition to the sums referred to in the sub-section (5) to meet such portion of the expenditure as the Authority may determine towards the execution of any scheme or work for augmenting water supply, electricity, roads, transportation and such other amenities within the Bangalore Metropolitan Area. 65. Government's power to give directions to the Authority.- The Government may give such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Authority to comply with such directions. 65-B. Submission of copies of resolution and Government's power to cancel the resolution or order.- (1) The Commissioner shall submit to the Government copies of all resolutions of the Authority. (2) If the Government is of opinion that the execution of any resolution or order issued by or on behalf of the Authority or the doing of any act which is about to be done or is being done by or on behalf of the Authority is in contravention of or in excess of the powers conferred by this Act or any other law for the 19 time being in force or is likely to lead to a breach of peace or to cause injury or annoyance to the public or to any class or body of persons or is prejudicial to the interests of the authority, it may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act after issuing a notice to the Authority to show cause, within the specified period which shall not be less than fifteen days, why,- (a) the resolution or order may not be cancelled in whole or in part; or (b) any regulation or bye-law concerned may not be repealed in whole or in part. (3) Upon consideration of the reply, if any, received from the authority and after such inquiry as it thinks fit, Government may pass orders cancelling the resolution or order or repealing the regulation or bye- law and communicate the same to the authority. (4) Government may at any time, on further representation by the authority or otherwise, revise, modify or revoke an order passed under subsection (3). 67. Amendment of the Karnataka Town and Country Planning Act, 1961.- (1) In the Karnataka Town and Country Planning Act , 1961 (Karnataka Act 11 of 1963),- (a) in section 2, for item (i) of sub-clause (a) of clause (7), the following item shall be substituted namely,- "(i) the local planning area comprising the City of Bangalore, the Bangalore Development Authority, and"; 20 (b) after section 81-A, the following section shall be inserted, namely,- "81-B. Consequences to ensue upon the constitution of the Bangalore Development Authority.- Notwithstanding anything contained in this Act, with effect from the date on which the Bangalore Development Authority is constituted under the Bangalore Development Authority Act, 1976 the following consequences shall ensue,- (i) the Bangalore Development Authority shall be the local Planning Authority for the local planning area comprising the City of Bangalore with jurisdiction over the area which the City Planning Authority for the City of Bangalore had jurisdiction immediately before the date on which the Bangalore Development Authority is constituted; (ii) the Bangalore Development Authority shall exercise the powers, perform the functions and discharge the duties under this Act as if it were a Local Planning Authority constituted for the Bangalore City; (iii) the City Planning Authority shall stand dissolved and upon such dissolution,-" ****" 7. In exercise of the power vested in it under Section 4-A(1) of the Town Planning Act, the State Government issued Notifications dated 1.11.1965 and 13.3.1984 declaring the areas specified therein to be the "Local Planning Areas". By the first 21 notification, the State Government declared the area comprising the city of Bangalore and 218 villages enumerated in Schedule I thereto to be the "Local Planning Area" for the purposes of the Town Planning Act and described it as the Bangalore City Planning Area. The limits of the planning area were described in Schedule II appended to the notification. By the second notification, the area comprising 325 villages around Bangalore (as mentioned in Schedule I) was declared to be the Local Planning Area for the environs of Bangalore. The limits of the city planning area were indicated in Schedule II. At the end of Schedule II of the second notification, the following note was added: "This excludes the Bangalore City Local Planning Area declared (by) Government Notification No. PLN/42/MNP/65/SO/3446 dated 1-11-1965." 8. A third notification was issued on 6.4.1984 under Section 4- A(3) of the Town Planning Act amalgamating the Local Planning Areas of Bangalore declared under the earlier two notifications as "Bangalore City Planning Area" w.e.f. 1.4.1984. 22 9. On 1.3.1988, the State Government issued notification under Section 2(c) of the 1976 Act specifying the villages indicated in the first Schedule and within the boundaries indicated in the second Schedule to Notification dated 13.3.1984 to be the areas for the purposes of that clause. We shall refer to this notification a little later in the context of the High Court's negation of the respondents' challenge to that notification on the ground that the names of the villages or specified areas had not been published in the Official Gazette and, as such, the layout plans of the area comprised in those villages are not governed by the 1976 Act. 10.As a result of unprecedented increase in the population of the city of Bangalore between 1970 and 1980, the available civic amenities like roads, water supply system and supply of electricity were stretched to their limit. To meet the additional requirement of water and electricity and to tackle the problems of traffic, new schemes were prepared in the development plan of Bangalore city, which was approved in 1984. These included augmentation of water supply, formation of Ring 23 Road etc. Bangalore Water Supply and Sewerage Board (BWSSB) submitted a proposal to the State Government for taking up of Cauvery Water Supply Scheme, Stage III (for short, `the Cauvery Scheme') for supply of an additional 270 MLD water to Bangalore at a cost of Rs. 240 crores. The proposed financing pattern of the project was as follows: (i) State Government - Rs.80/- crores, (ii) Life Insurance Corporation of India - Rs. 50/- crores, (iii) Bangalore City Corporation - Rs. 30/- crores, and (iv) World Bank - Rs. 80/- crores. 11.By an order dated 28.06.1984, the State Government, after taking cognizance of the difficulties being experienced by BWSSB in supplying water to the Bangalore Metropolitan Area and the possibility of acute shortage of water in next 10 years if the supply was not augmented, granted approval to the Cauvery Scheme. 12.Since the World Bank assistance was expected only in the year 1988 and the Cauvery Scheme was to be implemented by 24 1990 to meet the drinking water needs of the residents of Bangalore, the issue was discussed in the meeting held on 01.01.1987 under the chairmanship of the Chief Secretary of the State and it was decided that with a view to avoid escalation in the cost, the funds may be collected from other sources including the BDA because substantial quantity of water was required for the layouts which were being developed by it or likely to be developed in future. In furtherance of that decision, the State Government issued order dated 25.03.1987 and directed the BDA to make a grant of Rs. 30 crores to BWSSB to be paid in installments from 1987-88 to 1989-90 by loading an extra amount as water supply component at the rate of Rs. 10,000/- on an average per site for all the layouts to be formed thereafter. 13.In compliance of the directions given by the State Government, the BDA started collecting Rs.10,000/- per site. Later on, the levy under the Cauvery Scheme was increased to Rs.1 lac per acre. By 1992, it was realised that the BDA had not been able to develop and distribute sites as expected. 25 Therefore, a proposal was submitted by the Commissioner, BDA to the State Government that contribution towards the Cauvery Scheme may be distributed among those applying for change of land use and the private layouts to be developed by the house building societies and on major housing projects. The State Government accepted the suggestion of the BDA and passed order dated 12.1.1993 for the levy of charges under the Cauvery Scheme at the rate of Rs.2 lacs per acre. 14.In 1992, the BDA also decided to take up the construction of 63.30 kilometers long Outer Ring Road and 3.5 kilometers long Intermediate Ring Road at an estimated cost of Rs.115 crores with a possible escalation up to Rs.130 crores. 36.24 kilometers of the Outer Ring Road was to pass through the BDA layouts and the balance was to pass through the land outside the BDA layouts. The cost of construction of Outer Ring Road passing through the BDA layout was to be met by charging the allottees of sites in the BDA layouts. For the balance 27.06 kilometers of Outer Ring Road and 3.5 kilometers of Intermediate Ring Road a proposal was prepared 26 to obtain financial assistance from the World Bank. In the meeting held on 5.6.1992 under the chairmanship of the Chief Secretary of the State, the possibility of taking loan from HUDCO was explored. Simultaneously, it was considered whether partial burden of the cost could be passed on to the beneficiaries of the private layouts and it was agreed that like the Cauvery Scheme, Ring Road surcharge should be levied on the sites to be formed by the BDA and the private housing societies at the rate of Rs.1 lac per acre. Thereafter, the BDA passed Resolution dated 19.10.1992 for levy of charges at different rates on change of land use in different areas and Rs.1 lac per acre on the layouts of housing societies and private lands as also the sites formed by itself. 15.The Air Craft Employees Cooperative Society Ltd. (respondent in C.A. No.7503/2002) submitted an application for approval of layout in respect of 324 acres 30 guntas land situated in Singasandra and Kudlu villages, Surjapur Hobli and Begur Hobli respectively. The application of the respondent was considered in the BDA's meeting held on 31.10.1991 and was 27 approved subject to various conditions including payment of Rs.2 lacs per acre towards the Cauvery Scheme and Rs.1 lac as Ring Road surcharge. Another condition incorporated in the Resolution of the BDA was that the civil portion of work shall be carried out by the respondent under its supervision. The decision of the BDA was communicated to the respondent vide letter dated 12.11.1992. 16.The respondent challenged the conditional sanction of its layout in Writ Petition No.11144/1993 and prayed for quashing the demand of Rs.2 lacs per acre towards the Cauvery Scheme and Rs.1 lac as Ring Road surcharge by making the following assertions: (i) The order passed by the State Government was applicable only to the sites to be formed by the BDA and not the layout of private House Building Societies because as per the Chairman of BWSSB, it will not be possible to take up the responsibility of providing water supply and underground drainage to such layouts and the societies had to make their own arrangements. 28 (ii) The Cauvery Scheme will be able to meet the requirements of only the citizens residing within the municipal area and some newly formed layouts adjacent to the city. (iii) There is no provision in the Bangalore Water Supply and Sewerage Act, 1964 (for short, `the 1964 Act') under which the burden of capital required for the execution of schemes could be passed on to the private House Building Societies and, in any case, the BWSSB can recover the cost by resorting to Section 16 of the 1964 Act. (iv) Under the 1976 Act, the Government is not empowered to authorise the BDA to transfer the cost of the Cauvery Scheme to the private layouts. (v) 20,000 acres of land has been acquired by the BDA for forming layouts in the vicinity of Bangalore and 10,000 acres had been acquired by the Government for House Building Cooperative Societies and if Rs.1 or 2 lacs per acre are charged, the Government will collect about Rs.600 crores from the BDA itself, though the latter's contribution was initially fixed at Rs.30 crores only. 29 (vi) The demand of Rs.1 or 2 lacs per acre towards the Cauvery Scheme is ultra vires the provisions of Article 265 of the Constitution. (vii) The levy of Rs.1 lac per acre as Ring Road surcharge is not sanctioned by law and the State and the BDA cannot burden the private layouts without determining whether the Ring Road would be of any use to the members of the House Building Societies. 17.During the pendency of Writ Petition No.11144/1993, the State legislature amended the 1976 Act by Act. No.17/1994 and inserted sub-section (5A) in Section 32 w.e.f. 20.6.1987 authorising the BDA to demand sums in addition to those referred in sub-section (5) to meet the expenditure towards the execution of any scheme or work for augmenting water supply, electricity, roads, transportation and other amenities within the Bangalore Metropolitan area. 18. The respondent promptly amended the writ petition and challenged the constitutional validity of the newly inserted sub-section by asserting that the provision is discriminatory 30 and violative of Article 14 of the Constitution because it gives unbridled and uncanalized power to the BDA to demand additional sums for different schemes. It was also pleaded that sub-section (5A) has been inserted in Section 32 to legitimize the conditions incorporated in letter dated 12.11.1992 for payment of charges for the Cauvery Scheme and the Ring Road. 19.While the parties were litigating on the constitutionality of the amended provision and legality of the conditional sanction of the layout, the respondent applied for approval of the BDA for starting civil work. The same was sanctioned subject to payment of the following charges: (i) Supervision Charges Rs. 92,26,687.00 (at the rate of 9% on Civil Work) (ii) Improvement charges Rs. 1,65,95,008.00 (at the rate of Rs. 20 per sq. mtrs.) (iii) Examination charges Rs. 4,14,876.00 (0-50 per sq. mtrs.) (iv) Slum Clearance Development Rs. 20,74, 365.00 Charges (Rs. 25,000 per hectare) (v) M.R.T.S. Tax Rs. 1,02,51, 875.00 31 (Rs. 50,000 per acre) (vi) Miscellaneous Rs. 7,189.00 20.The respondent challenged the conditional approval of civil work in Writ Petition No. 25833/1998 on the ground that the 1976 Act does not authorize such levies and that the legislature has not laid down any guideline for creating such demand from the private House Building Societies. An additional plea taken by the respondent was that the BDA has applied the provisions of Section 32 of the 1976 Act under a mistaken impression that the layout was within its jurisdiction. According to the respondent, no notification had been issued by the State Government for including the villages of North and South Talukas within the Bangalore Metropolitan Area. Another plea taken by the respondent was that the State Government has already collected conversion fine and, as such, the BDA does not have the jurisdiction to levy betterment fee. Similar plea was raised in respect of Mass Rapid Transport System Cess and the Slum Clearance charges. 32 21.The other House Building Cooperative Societies also filed writ petitions between 1994 and 1998 for striking down Section 32(5A) and the conditional sanction of their layouts in terms of which they were required to pay for the Cauvery Scheme and the Ring Road apart from other charges mentioned in the sanction of civil work as was done in the case of Air Craft Employees Cooperative Society Limited. They generally pleaded that: i. the BDA has no jurisdiction to make demands requiring payment of sums under various heads in the matter of sanction of the residential layout plan as areas of their layouts do not form part of the Bangalore Metropolitan Area; ii. the notification issued under Sec. 2(c) of the 1976 Act is not valid as there is no specification of the adjacent areas; iii. Notification dated 1.3.1988 is not in consonance with the requirements of law as it does not specify the villages and the areas which were sought to be declared and specified as part of the Bangalore Metropolitan Area and the 33 specifications and schedules referred to in the notification have not been published; iv. the villages which include the lands that form a part of the residential layouts also do not figure in the schedule to Notification dt. 13.3.1984. 22.The writ petitions were contested by the appellant by making the following assertions: i. the lands of the respondents' residential layout fall within the local planning area of the authority and, therefore, they are liable to pay layout charges in respect of the Cauvery Scheme, Ring Road surcharge, slum clearance charge, betterment levy, scrutiny fee, supervision charges, etc. ii. the charges have been levied in terms of the directions given by the State Government and the decision taken by the BDA. iii. the societies are required to carry out civil work under the supervision of the BDA and, therefore, they are liable to pay supervision charges. 34 iv. Section 32(5A) of the 1976 Act does not suffer from any constitutional infirmity and guidance for levy of such charges can be traced in the scheme of the Act. 23.The Division Bench of the High Court first considered the question whether Notification dated 1.3.1988 issued under Section 2(c) of the 1976 Act was invalid because the names of the villages or the specified area had not been notified or published in the Official Gazette and whether in the absence of such notification, the villages in which the societies had formed layouts cannot be treated as part of the Bangalore Metropolitan Area. The Division Bench referred to the definition of the expression "Bangalore Metropolitan Area" contained in Section 2(c) of the 1976 Act, the contents of Notification dated 1.3.1988 and held that the description of the area given in the notification was in consonance with the definition of the Bangalore Metropolitan Area because reference had been made to the villages in Schedule I to Notification dated 13.3.1984 and the boundaries of the planning environs area as per Schedule II of the said 35 notification. The Division Bench opined that if Notifications dated 13.3.1984 and 1.3.1988 are read together, it cannot be said that the particular villages do not form part of the Bangalore Metropolitan Area. 24.The Division Bench did not decide the plea of the respondents that some of the villages were not included in the Schedules by observing that determination of this question involves investigation into a question of fact and this can be considered at the time of approval of the layout plan of the particular society. 25.The argument that while dealing with the issue raised in Writ Petition No.13907/1995, the BDA had lost the territorial jurisdiction because the areas in question had become part of City Municipal Council, Byatarayanapura and City Municipal Council, Krishnaraja Puram respectively vide Notification dated 22.1.1996 was left to be decided by the BDA with liberty to the concerned respondent to raise the same at an appropriate stage. 36 26.The Division Bench then adverted to Articles 265 and 300A of the Constitution and held that the BDA cannot levy or recover the sums specified in the demand notice on the basis of the government order or circular. The Division Bench further held that the approval of layout plan or work order cannot be made subject to the condition of deposit of the sum demanded by it. The Division Bench then analysed the provisions of Section 32 of the 1976 Act and observed: "No principle appears to have been laid down or indicated for the authority to be kept in view and followed when determining in such portion of the expenditure, which expenditure have to relate to be made or to be incurred in the execution of any schemes or works as referred. No doubt, the schemes or works for augmenting the water supply, electricity and other amenities only provide that it should be worked within the Bangalore Metropolitan Area or work is to be for the benefit of the Bangalore Metropolitan Area to provide amenities within the Bangalore Metropolitan Area. But, the question is that out of that expenditure which the Bangalore Metropolitan Area has to bear or incur what portion thereof the applicant seeking approval of layout plan etc., will be required to deposit and know the proportion or a portion of that is to be determined by the authority. There is nothing in this section to indicate or to provide any guideline. There are no rules framed under the Act with reference to subsection (5-A) of Section 32 of the 37 Bangalore Development Authority Act, 1976 to provide guidelines or to indicate as to how that is to be determined. The section does not by itself provide any procedure of either hearing or of giving the notice to the persons affected, or there being opportunity of being heard being given to the concerned persons or person before determination of the portion of the expenditure which the Bangalore Development Authority has to incur with reference to those schemes or works to be levied thereunder." 27.The Division Bench relied upon the ratio in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538, Jyoti Pershad v. The Administrator for The Union Territory of Delhi, AIR 1961 SC 1602; Devi Das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895, State of Kerala v. M/s. Travancore Chemicals and Manufacturing Company (1998) 8 SCC 188 and observed: "In the present case, sub-section (5-A) of Section 32 of the Act, does not appear to provide any guidelines so as to determine as to what exact portion of the expenditure should the applicant be required to deposit. No doubt, the entire expenditure cannot be fastened on the applicant. It does not provide any guidelines in this regard. It does not provide the portion of the amount the applicant maybe required to deposit shall bear any percentage on the basis of enjoyment of the benefit by the applicant or the 38 applicant likely to enjoy the benefit qua enjoyment by total area or its population. It also does not provide that the applicant before being required to pay will have opportunity of disputing that claim and challenging the correctness of the portion proposed by the authority to be fastened on him. Really the section appears to confer unbridle powers without providing any guide lines or guidance in that regard. The section also does not provide any remedy against the order of authority under Section 32(5) of the Act. The learned counsel for the respondents contended that there is remedy against the order of the authority under Section 63 of the Act by way of revision to the Government which may consider the legality or propriety of the order or proceedings. In our opinion, this contention of the learned Counsel is without substance. In view of the Non obstante clause contained in sub-section (5-A) of Section 32 of the Act which provides that exercise of that power and it may result in or it may cause irrational discrimination between the same set of persons and the persons maybe deprived of their properties in the form of money by the exercise of sweet will and the unbridled discretion of the authority concerned. In our view this provision as it confers unbridle and uncontrolled power on the authority as such it may enable unequal and discriminatory treatment to be accorded to the persons and it may enable the authority to discriminate among the persons similarly situated. Tested by the yardstick of the principle laid down in Sri Rama Krishna Dalmia's case reported in A.I.R.1958 Supreme Court 538 and Shri Jyothi Pershad's case reported in A.I.R. 1961 Supreme Court 1602. We find that the provision of sub-section (5-A) of Section 32 of the 39 Bangalore Development Act, 1976 suffers from vice of discrimination and has tendency to enable the authority to discriminate and as such hit by Article 14 of the Constitution." 28.The Division Bench finally concluded that the demand made by the BDA with the support of Section 32(5A) is illegal and without jurisdiction and accordingly allowed the writ petitions. 29.At this stage, it will be appropriate to mention that during the course of hearing on 2.9.2009, Shri Dushyant Dave, learned senior counsel appearing for one of the respondents stated that a sum of Rs.300 crores (approximately) has been collected by the BDA from the House Building Societies in lieu of sanction of their layouts and substantial amount from the allottees of the sites of the layouts developed by it between 1984-1992 and this, by itself, was sufficient to prove that the exercise of power by the BDA under Section 32 (5A) of the 1976 Act is arbitrary. After considering the statement made by Shri Dave, the Court directed the Commissioner and/or Secretary of the BDA to file a detailed and specific affidavit giving the particulars of contribution made by the BDA 40 towards the Cauvery Scheme and the amount demanded and/or collected from those who applied for sanction of the private layouts as also the allottees of the sites in the BDA layouts. In compliance of the Court's direction, Shri Siddaiah, the then Commissioner, BDA, filed affidavit dated 11.11.2009, paragraphs 2 to 5 of which are extracted below: "2. The Government of Karnataka formed the Cauvery Water IIIrd Stage Scheme in 1984. However, the Government directed the Bangalore Development Authority to contribute Rs. Thirty crores towards the Cauvery Water IIIrd Stage Scheme by its order No. HUD 97 MNI 81, Bangalore dated 25th March, 1987. The Bangalore Development Authority started collecting Cauvery Water Cess from 1988. However, the Government by its order No. UDD 151 Bem.Aa.Se 2005, dated 03.05.2005 directed the Bangalore Development Authority to stop collection of the Cauvery Water Cess and Ring Road Cess and MRTS Cess. A copy of the order of the Government Order dated 03.05.2005 directing not collect any cess referred above is produced herewith as Annexure-`A'. The BDA has charged and collected the Cauvery water cess between 1988 and 2005. The Cauvery Water cess collected by the BDA is periodically transferred to the Bangalore Water Supply and Sewerage Board (BWSSB). The chart showing year wise payments made to BWSSB towards the Cauvery Water Cess from 1988 till 2005 is produced herewith as Annexure-`B'. The payment chart shows the amount collected towards the Cauvery Water Cess and paid to BWSSB. The chart shows that a total sum of Rs. 34.55 crores are collected from 1988 to April 2005. The sum of 41 Rs.34.55 crores collected is in respect of both private layouts as well as Bangalore Development Authority sites. The entire money collected towards the Cauvery Water Cess has been paid to the Bangalore Water Supply Sewerage Board, Bangalore as stated above. 3. Similarly, the collection towards the Ring Road Cess from the year 1992-93 and the collections were made up to 2005-06. The total sum collected is Rs.15.15 crores. The year-wise chart showing the collection of Ring Road Cess is produced herewith as Annexure-`C'. The Ring Road Cess is collected only from the private layouts. 4. With regard to certain averments made in W.P. No. 11144/1993 with regard to estimated collection of Cauvery Water Cess, it is submitted that the estimates are far from accurate. It is just a guess work. The averments made therein that the Government has acquired around 10,000 acres towards the private societies will not be within the knowledge of the Bangalore Development Authority, because the Government does not seek the opinion or consent of BDA before acquiring land for a private layout. The private layouts within the limits of BDA have to apply to BDA for approval of a private under Section 32 of BDA Act. From 1984 till 2005, 194 applications for approval of private layouts were received and were approved by the Bangalore Development Authority involving about an extent of 5668 acres and 15 3/4th gunthas (five thousand six hundred and sixty-eight acres and fifteen and three fourth gunthas). However, Cauvery Water Cess and Ring Road Cess are levied and collected as stated above from 1988 and 2005 respectively. The submissions made in the Writ Petition to the contrary are speculative. 42 5. Similarly, the averments in the W.P. that the Bangalore Development Authority would collect about 300 crores are speculative. It is submitted with respect after the directions of the Government in 2005, all the above collections have been stopped. Hence, this affidavit. BANGALORE DEVELOPMENT AUTHORITY BANGALORE THE COLLECTION OF CAUVERY WATER CESS & PAID TO BWSSB AS MENTIONED BELOW (INR in Lakh) SL NO CHEQUE NO. DATE AMOUNT 1 FROM FEB 1988 TO APRIL 1992 2,130.00 2 705908 02.11.1996 150.00 3 718093 21.01.1997 100.00 4 737303 15.03.1997 100.00 5 753086 06.07.1997 100.00 6 756449 30.12.1997 150.00 7 650002 18.03.1998 50.00 8 759664 20.07.1998 50.00 9 502441 22.01.1999 50.00 10 769862 15.09.1999 75.00 11 653066 04.06.2005 500.00 TOTAL 3,455.00 (Rupees Thirty Four Crores and Fifty Five Lakh) Sd/- Accounts Officer BDA, Bangalore ANNEXURE-II YEAR WISE RING ROAD CESS (INR in Lakh) YEAR COLLECTIONS CHARGED TO RING BALANCE ROAD EXPEND. 1992-93 63.39 63.39 - (Feb 93 on wards) 1993 -94 183.89 183.89 - 43 1994-95 217.87 217.87 - 1995-96 331.14 331.14 - 1996-97 162.08 162.08 - 1997-98 180.79 180.79 - 1988-99 84.23 84.23 - 1999-00 50.49 50.49 - 2000-01 19.48 19.48 - 2001-02 0.30 0.30 - 2002-03 7.34 7.34 - 2003-04 - - - 2004-05 - - - 2005-06 214.27 214.27 - TOTAL 1,515.27 1,515.27 " Letter dated 03.05.2005 of the State Government, which is enclosed with the affidavit of Shri Siddaiah, is also reproduced below: " GOVERNMENT OF KARNATAKA UDD.151.BAN.2005 Karnataka Secretariat Multistoried Building Bangalore Dated: 03.05.2005 Sub: Ring Road Cess, Augmentation Cess (Cauvery Water Cess) & MRTS Cess. Ref: Government Circular No. 249 of 2001 dated 20.09.2003. In the above circular referred above, the Government has withdrawn all earlier orders and decided that henceforth Ring Road Cess, Augmentation Cess (Cauvery Water Cess) & MRTS Cess should not be levied. Even so some 44 Corporations, Municipalities and Authorities are charging the above cess. Therefore, until a decision is taken at the level of the Government about the above stated subject and until further directions, Ring Road Cess, Augmentation Cess (Cauvery Water Cess) & MRTS Cess should not be charged. Hence this order. Sd/-03.05.2005 (V.R. Ilakal) Addl. Secretary, Govt. of Karnataka Urban Development" 30.Thereafter, Shri Anand R.H., President of the Bank Officers and Officials House Building Cooperative Society Limited filed detailed affidavit dated 08.03.2010, paragraphs 2 to 7 whereof are reproduced below: "2. I submit that this Hon'ble Court by order dated 02.09.2009 had directed the Commissioner and/or Secretary of Appellant Bangalore Development Authority (BDA for short) to file a detailed and specific affidavit stating therein the total contribution made by the BDA towards Cauvery Water Supply Scheme Stage III and the amount demanded and/or collected from those who applied for sanction of private layouts as also the allottees of the sites in the layouts prepared by the BDA itself. 3. I say that the BDA has deliberately not at all disclosed the material facts: 45 i) the total number of the Housing Societies and others who applied for sanction of layouts including private layouts; ii) the amount BDA has demanded from the Housing Societies and others who have applied for sanction of layouts and private layouts; iii) the total number of sites formed in the layouts formed by the BDA and allotted to the public; (iv) the total amount demanded and collected from the allottees of the sites in the layouts formed by BDA itself; v) as per Government order dated 25.03.1987 the BDA was empowered to levy and collect amount towards the Cauvery Water Supply Scheme also from the Applicants who apply for change in land use and for formation of Group Housing/other major developments and for formation of Private Layouts. The BDA has not disclosed the details of such Applicants or the amount recovered from them in terms of the Government order dated 25.03.1987. 4. I say that in the affidavit under reply the BDA has stated that it has approved layouts involving about an extent of 5668 acres and 15 > guntas from 1984 till 2005. The extent of area involved in respect of each of the Societies is more than 10 acres in each layout. In terms of the Government Order the BDA has demanded towards the Cauvery Water Supply Scheme at the rate of Rs. 3,00,000/- (Rupees Three Lakhs Only) per acre. Therefore, at a conservative estimate the BDA has raised demand of more than Rs. 170/- crores (5668 x Rs. 3 lakhs). This amount pertains to only Housing Societies. As stated above the BDA has not disclosed the total number of 46 layouts formed by it and the total number of site allotted in the said layouts to its allottees. I say that the BDA has in its officials site http://www.bdabangalore.org/layout.htm has furnished the layout information till 2007 which information has been downloaded from the internet by the deponent. As per the information published by the BDA itself it has formed 62 layouts and has made allotments of about 2 lakh sites to general public. It is also stated therein that in the last one decade more than 10 new layouts have been added to the growing city of Bangalore by BDA as under: A. BANASHANKARI 6TH STAGE 7 743 acres land acquired for phase-3 Banashankari 6th Stage and Anjanapura Further Extension in Uttarahalli Hobli, Bangalore South Taluk, 5000 sites allotted in September 2002. B. BANASHANKARI 6TH STAGE FURTHER EXTENSION 7 750 acres land acquired in Uttarahalli Hobli, Bangalore South Taluk, 5800 allotted during January 2004. C. SIR. M. VISWESHWARAYA LAYOUT 7 1337 acres and 22 guntas of land acquired for SMV Layout allotted 10,000 sites during March 2003. D. SIR. M. VISWESHWARAYA LAYOUT FURTHER EXTENSION 7 510 acres land acquired, 4200 allotted during January, 2004. It is near Kengeri Hobli. E. HSR Layout is on the South-Eastern part of the city closer to Electronic City and Outer Ring Road. It is one among the prestigious layouts of BDA. 47 A total of 9900 sites have been allotted in HSR Layout during 1986 to 88, 92, 95 and 99. F. Sir. M. Visweswaraya Nagar Layout is in the Western part of the city. In SMV Layout we have allotted 17, 624 sites 6 x 9 - 4445 9 x 12 - 7368 12 x 18 - 4167 15 x 24 - 1644 G. In SMV Further Extension we have allotted 3615 sites. In Anjanpura Further Extension we have allotted 7340 sites 6 x 9 - 1835 9 x 12 - 3305 12 x 18 - 1335 15 x 24 - 365 H. In Arkavathi Layout, in the 1st Phase 1710 sites and in the 2nd phase 8314 sites of different dimensions. A total of 3664 (30x40) dimension sites have been allotted totally at the rate of Rs. 2100 sq. mtrs. S.No Name of the Location No. of sites formed layout Intermediate Corner Total No. of sites allotted 1 BSK 6th Stage South part of 15520 2379 17899 15520 2 the city with 5175 816 5991 5175 approach road from Kengeri Road 48 3 Anjanapura South part of 5424 829 6253 5424 Township 1 to 8th the city with 4340 683 5023 4340 Block approach 4 road from Kanakapura Road. Biggest Layout formed in recent years 5 SMV Layout West part of 9696 1764 11460 9696 6 SMV further the city with 3615 650 4265 3615 extension approach 20000 8600 28600 8813 7 Arkavath road from Nagarabhavi Road True copy of the layout information published by BDA in its official website: http://www.bdabangalore.org/layout.htm as at 2007 is filed as ANNEXURE A-1 to this affidavit. The true typed copy of Annexure A-1 is filed as ANNEXURE A- 2. 5. I say that if the total number of sites allotted by the BDA in the layout formed by it if taken as 2 lakhs sites as stated in the BDA publication the amount levied and collected by BDA from such allottees will come to Rs. 200 crores (2,00,00,000 x Rs. 10,000/-). As stated in the BDA publication in the last decade itself more than 73503 sites have been allotted by the BDA in the layouts formed by itself. The amount levied and collected by the BDA from these allottees in the last one decade at the rate of Rs. 10,000/- per site in terms of the Government Order dated 25.03.1987 towards the Cauvery Water Supply Scheme itself will come to Rs. 73,50,30,000/- (Rs.10,000 per site x 73503 sites). 6. I say that apart from the amount levied and collected by BDA from the above mentioned Applicants, the BDA must have collected the amount towards the Cauvery Water Supply Scheme from the Applicants who applied for change in land use and 49 for formation of Group Housing/other major developments and for formation of Private Layouts at the rate as prescribed in the Government Order dated 25.03.1987. 7. I say that the facts and figures disclosed above is based on the averments made in the affidavit filed by BDA and the information official from the official website of BDA http://www.bdabangalore.org/layout.htm and I believe the same to be correct. Therefore, it is apparent that the BDA has demanded more than Rs.370 crores from the societies whose layouts have been approved by BDA (Rs. 170 crores) and from its allottees (Rs. 200 crores) excluding the Applicants who applied for change in land use and for formation of Group Housing/other major developments and for formation of Private Layouts. I say that apart from the fact that the BDA is not empowered to levy and collect the amount towards Cauvery Water Supply Scheme and without prejudice to the submission that the provisions of Section 32(5-A) of the BDA Act is ultra vires the Constitution and without prejudice to rights and contentions raised in the Civil Appeal even assuming that the BDA could levy and collect the amount towards Cauvery Water Supply Scheme, the BDA could collect only Rs. 30 crores. The BDA has however demanded the payment towards Cauvery Water Supply Scheme in excess of over Rs. 370 crores from the Housing Societies and its own allottees apart from the demand made from the Applicants who applied for change in land use and for formation of Group Housing/other major developments and for formation of Private Layouts which facts have not been disclosed by the BDA. The entire information pertaining to the demand and collection of the funds towards Cauvery Water 50 Supply Scheme is available with BDA but has been deliberately withheld. In any event even according to the affidavit filed by the BDA it has collected Rs.34.55 crores as against the limit of Rs. 30 crores which it could collect under the Government Order. Therefore, the amount collected is far in excess of its limit. On this ground also the demand raised against the Respondent Societies is illegal and without authority of law." 31. We shall first deal with the question whether the area in which the respondents have formed layouts fall within the Bangalore Metropolitan Area. In the impugned order, the Division Bench has recorded brief reasons for negating the respondents' challenge to Notification dated 1.3.1988. The conclusion recorded by the Division Bench and similar view expressed by another Division Bench of the High Court in the Commissioner, Bangalore Development Authority v. State of Karnataka ILR 2006 KAR 318 will be deemed to have been approved by the three Judge Bench of this Court in Bondu Ramaswamy v. Bangalore Development Authority (2010) 7 SCC 129, which referred to Notifications dated 1.11.1965 and 13.3.1984 issued under Section 4A(1) of the Town Planning Act 51 and Notification dated 1.3.1988 issued under Section 2(c) of the 1976 Act and observed: "A careful reading of the Notification dated 1-3-1988 would show that the clear intention of the State Government was to declare the entire area declared under the Notification dated 1-11-1965 and the Notification dated 13-3-1984, together as the Bangalore Metropolitan Area. The Notification dated 1-3-1988 clearly states that the entire area situated within the boundaries indicated in Schedule II to the Notification dated 13-3-1984 was the area for the purpose of Section 2(c) of the BDA Act. There is no dispute that the boundaries indicated in Schedule II to the Notification dated 13-3-1984 would include not only the villages enumerated in First Schedule to the Notification dated 13-3-1984 but also the area that was declared as planning area under the Notification dated 1-11-1965. This is because the areas declared under Notification dated 1-11-1965 are the core area (Bangalore City) and the area surrounding the core area that is 218 villages forming the first concentric circle; and the area declared under the Notification dated 13-3- 1984 (325 villages) surrounding the area declared under the Notification dated 1-11-1965 forms the second concentric circle. Therefore, the boundaries of the lands declared under the Notification dated 13-3-1984, would also include the lands which were declared under the Notification dated 1-11-1965 and therefore, the 16 villages which are the subject- matter of the impugned acquisition, are part of the Bangalore Metropolitan Area. The learned counsel for the appellants contended that the note at the end of Second Schedule to the Notification dated 13-3-1984 excluded the Bangalore City Planning Area declared under the 52 Notification dated 1-11-1965. As the planning area that was being declared under the Notification dated 13-3-1984 was in addition to the area that was declared under the Notification dated 1-11-1965, it was made clear in the note at the end of the Notification dated 13-3-1984 that the area declared under the Notification dated 1-11-1965 is to be excluded. The purpose of the note was not to exclude the area declared under the Notification dated 1-11-1965 from the local planning area. The intention was to specify what was being added to the local planning area declared under the Notification dated 1-11-1965. But in the Notification dated 1-3-1988, what is declared as the Bangalore Metropolitan Area is the area, that is, within the boundaries indicated in Schedule II to the Notification dated 13-3-1984, which as noticed above is the area notified on 1-11-1965 as also the area notified on 13-3-1984. The note in the Notification dated 13-3-1984 was only a note for the purposes of the Notification dated 13-3-1984 and did not form part of the Notification dated 1-3-1988. There is therefore no doubt that the intention of the State Government was to include the entire area within the boundaries described in Schedule II, that is, the area declared under the two Notifications dated 1-11-1965 and 13-3-1984, as the Bangalore Metropolitan Area. In fact ever since 1988 everyone had proceeded on the basis that the Bangalore Metropolitan Area included the entire area within the boundaries mentioned in Schedule II to the Notification dated 13-3-1984. Between 1988 and 2003, BDA had made several development schemes for the areas in the first concentric circle around Bangalore City (that is, in the 218 villages described in First Schedule to the Notification dated 1-11-1965) and the State Government had sanctioned them. None of those 53 were challenged on the ground that the area was not part of Bangalore Metropolitan Area." The Bench then considered the argument that the language of notification dated 1.3.1988 cannot lead to a conclusion that the areas specified in the Schedule were made part of the Bangalore Metropolitan Area, referred to the doctrine of casus omissus, the judgment of the Constitution Bench in Padma Sundara Rao v. State of T. N. (2003) 5 SCC 533 and proceeded to observe: "Let us now refer to the wording and the ambiguity in the notification. Section 2(c) of the BDA Act makes it clear that the city of Bangalore as defined in the Municipal Corporation Act is part of Bangalore Metropolitan Area. It also makes it clear that the areas where the City of Bangalore Improvement Act, 1945 was in force, is also part of Bangalore Metropolitan Area. It contemplates other areas adjacent to the aforesaid areas being specified as part of Bangalore Metropolitan Area by a notification. Therefore, clearly, the area that is contemplated for being specified in a notification under Section 2(c) is "other areas adjacent" to the areas specifically referred to in Section 2(c). But it is seen from the Notification dated 1-3-1988 that it does not purport to specify the "such other areas adjacent" to the areas specifically referred to in Section 2(c), but purports to specify the Bangalore Metropolitan Area itself as it states that it is specifying the "areas for the purpose of the said clause". If the notification specifies the entire Bangalore Metropolitan Area, the interpretation put forth by the appellants that only the villages included in Schedule I to the Notification 54 dated 13-3-1984 would be the Bangalore Metropolitan Area, would result in an absurd situation. Obviously the city of Bangalore and the adjoining areas which were notified under the City of Bangalore Improvement Act, 1945 are already included in the Bangalore Metropolitan Area and the interpretation put forth by the appellants would have the effect of excluding those areas from the Bangalore Metropolitan Area. As stated above, the core area or the inner circle area, that is, Bangalore City, is a part of Bangalore Metropolitan Area in view of the definition under Section 2(c). The 218 villages specified in the Notification dated 1-11-1965 are the villages immediately surrounding and adjoining Bangalore City and it forms the first concentric circle area around the core area of Bangalore City. The 325 villages listed in First Schedule to the Notification dated 13-3-1984 are situated beyond the 218 villages and form a wider second concentric circle around the central core area and the first concentric circle area of 218 villages. That is why the Notification dated 1-3-1988 made it clear that the Bangalore Metropolitan Area would be the area within the boundaries indicated in Second Schedule to the Notification dated 13-3-1984. It would mean that the three areas, namely, the central core area, the adjoining 218 villages constituting the first concentric circle area and the next adjoining 325 villages forming the second concentric circle are all included within the Bangalore Metropolitan Area. What is already specifically included by Section 2(c) of the BDA Act cannot obviously be excluded by Notification dated 1-3-1988 while purporting to specify the additional areas adjoining to the areas which were already enumerated. Therefore, the 55 proper way of reading the Notification dated 1-3- 1988 is to read it as specifying 325 villages which are described in the First Schedule to the Notification dated 13-3-1984 to be added to the existing metropolitan area and clarifying that the entire areas within the boundaries of Second Schedule to the Notification dated 13-3-1984 would constitute the Bangalore Metropolitan Area. There is no dispute that the boundaries indicated in the Notification dated 13-3-1984 would clearly include the 16 villages which are the subject-matter of the acquisition." 32. In view of the judgment in Bondu Ramaswamy v. Bangalore Development Authority (supra), we hold that the villages specified in the schedules appended to Notifications dated 1.11.1965 and 13.3.1984 form part of the Bangalore Metropolitan Area. The question whether the BDA has lost territorial jurisdiction over the area in which the House Building Societies have formed layouts need not be decided because the learned counsel for the respondents did not challenge the observations made by the Division Bench of the High Court. 33. We shall now consider the following core questions: (1) whether Section 32(5A) of the 1976 Act is violative of Article 14 of the Constitution; 56 (2) whether Section 32(5A) of the 1976 Act suffers from the vice of excessive delegation of legislative power; (3) whether the demand of charges under the Cauvery Scheme etc. amounts to tax and is, therefore, ultra vires the provisions of Article 265 of the Constitution; and (4) whether the BDA has collected charges from the house building societies and the allottees of sites of the layouts prepared by it far in excess of its contribution towards the Cauvery Scheme, MRTS, etc. Question (1) 34. Shri Altaf Ahmed, learned senior counsel appearing for the BDA and Shri Sanjay R. Hegde, learned counsel for the State of Karnataka argued that Section 32(5A) is not violative of Article 14 of the Constitution inasmuch as it does not operate unequally qua the allottees of the sites of the layouts prepared by the house building societies on the one hand and the BDA layouts on the other hand. Learned counsel emphasised that the allottees of sites in the BDA layouts which were carved out after 20.06.1987 have been burdened with the liability to pay charges for the 57 Cauvery Scheme as well as Ring Road and no discrimination has been practiced between the two sets of allottees. Learned senior counsel Shri Altaf Ahmed submitted that even otherwise there is no comparison between the BDA layouts which were formed by spending substantial public funds and the private layouts prepared by the house building societies. Learned counsel referred to the additional affidavit of Shri Siddaiah to show that Rs. 34.55 crores were collected by the BDA between 1988 and 2005 both from the private layouts as well as the BDA sites and the entire amount has been paid to BWSSB in lieu of the BDA's share in the Cauvery Scheme. 35. Shri K.K. Venugopal and Shri P. Vishwanatha Shetty, learned senior advocates and Shri R.S. Hegde and other learned counsel appearing for the respondents supported the conclusion recorded by the High Court that Section 32(5A) is violative of Article 14 of the Constitution by emphasizing that the impugned provision has resulted in hostile discrimination between the allottees of sites in the layouts of the house building societies and other people living in the Bangalore Metropolitan Area. 58 Learned counsel submitted that while the benefit of the Cauvery Scheme, Ring Road, etc. will be availed by all the residents of the Bangalore Metropolitan Area, the cost of amenities have been loaded exclusively on the allottees of the sites of the private layouts and to some extent the BDA layouts and in this manner similarly situated persons have been discriminated. Shri Venugopal referred to the averments contained in paragraphs 4 to 6 of the amendment application filed in Writ Petition No. 11144/1993 to drive home the point that the BDA has loaded its share towards the Cauvery Scheme and Ring Road exclusively on the allottees of the private layouts leaving out the remaining population of the Bangalore Metropolitan Area. 36. In our view, the High Court committed serious error by recording a finding that Section 32(5A) is discriminatory and violative of Article 14 of the Constitution. While deciding the issue relating to constitutionality of the Section, the High Court overlooked the well-established principle that a statutory provision is presumed to be constitutionally valid unless proved otherwise and burden lies upon the person who alleges 59 discrimination to lay strong factual foundation to prove that the provision offends the equality clause enshrined in the Constitution. 37. In Charanjit Lal Chowdhuri v. Union of India (1950) 1 SCR 869, this Court enunciated the rule of presumption in favour of constitutionality of the statute in the following words: "Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind :- (1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and Light Company 248 U.S. 152, 157, in which the relevant passage runs as follows: "It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds."" (emphasis supplied) 60 38. In M.H. Quareshi v. State of Bihar (1959) 1 SCR 629, this Court observed: "The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times, and may assume every state of facts which can be conceived existing at the time of legislation." 39. In Ram Krishna Dalmia v. Justice S.R. Tendolkar (supra), to which reference has been made in the impugned order, this Court laid down various propositions including the following: "(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;" 61 40. In R.K. Garg v. Union of India (1981) 4 SCC 675 the Constitution Bench reiterated the well-settled principles in the following words: "While considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation." 41. Though, in the writ petitions filed by them, the respondents pleaded that Section 32(5A) is discriminatory, no factual foundation was laid in support of this plea and in the absence of such foundation, the High Court was not at all justified in 62 recording a conclusion that the impugned provision is violative of the equality clause contained in Article 14 of the Constitution. 42. While examining the issue of hostile discrimination in the context of Section 32(5A), the Court cannot be oblivious of the fact that due to unprecedented increase in the population of the Bangalore City and the policy decision taken by the State Government to encourage house building societies to form private layouts, the BDA was obliged to take effective measures to improve the civic amenities like water supply, electricity, roads, transportation, etc. within the Bangalore Metropolitan Area and for this it became necessary to augment the resources by the BDA itself or through other State agencies/instrumentalities by making suitable contribution. It would be a matter of sheer speculation whether in the absence of increase in the population of the Bangalore Metropolitan Area and problems relating to planned development, the legislature would have enacted the 1976 Act and the State and its agencies/instrumentalities would have spent substantial amount for augmenting water supply, electricity, transportation and 63 other amenities. However, the fact of the matter is that with a view to cater to the new areas, and for making the concept of planned development a reality qua the layouts of the private House Building Societies and those involved in execution of large housing projects, etc., the BDA and other agencies/instrumentalities of the State incurred substantial expenditure for augmenting the water supply, electricity, etc. There could be no justification to transfer the burden of this expenditure on the residents of the areas which were already part of the city of Bangalore. In other words, other residents could not be called upon to share the burden of cost of the amenities largely meant for newly developed areas. Therefore, it is not possible to approve the view taken by the High Court that by restricting the scope of loading the burden of expenses to the allottees of the sites in the layouts developed after 1987, the legislature violated Article 14 of the Constitution. Question (2) 43. Learned senior counsel for the BDA and the counsel appearing for the State assailed the finding recorded by the High 64 Court that Section 32(5A) is a piece of excessive delegation by pointing out that while the sums specified in Section 32(5) are required to be deposited by those intending to form an extension or layout to meet the expenditure for making roads, side-drains, underground drainage and water supply, lighting etc., the amount required to be deposited under Section 32(5A) is meant for developing the infrastructure necessary for augmenting the supply of water, electricity, construction of roads, etc., which are an integral part of the concept of planned development. Learned counsel emphasised that the policy of the legislation is clearly discernable from the Preamble of the 1976 Act and its provisions in terms of which the BDA is required to ensure planned development of the Bangalore Metropolitan Area. Both, Shri Ahmed and Shri Sanjay R. Hegde submitted that Section 32(5A) does not confer unbridled and unguided power upon the BDA and by using the expression "such portion of the expenditure as the Authority may determine towards the execution of any scheme or work for augmenting water supply, electricity, roads" and the legislature has provided sufficient guidance for exercise of power by the BDA. In support of this argument, learned 65 counsel relied upon the judgments in Municipal Board, Hapur v. Raghuvendra Kripal and others (1966) 1 SCR 950, Corporation of Calcutta and another v. Liberty Cinema (1965) 2 SCR 477 and Bhavesh D. Parish and others v. Union of India and another (2000) 5 SCC 471. 44. Shri K. K. Venugopal, Shri P. Vishwanatha Shetty, learned senior counsel and other learned counsel appearing for the respondents reiterated the argument made before the High Court that Section 32(5A) suffers from the vice of excessive delegation because the legislature has not laid down any policy for recovery of cost of infrastructure required for augmentation of supply of water, electricity, roads, transportation, etc. Learned senior counsel referred to the averments contained in the amended writ petitions to show that the cost of additional infrastructure is recovered only from those who apply for sanction of private layouts and there is no provision for distribution of liability by creating demand on others including those to whom sites are allotted in the BDA layouts. Shri Venugopal referred to Sections 15 and 16 of the Act to show that the BDA is required to prepare 66 development scheme and execute the same and argued that the cost of the scheme cannot be loaded only on the private layouts. Learned counsel relied upon the judgments in Daymond v South West Water Authority (1976) 1 All England Law Reports 39, The State of West Bengal v. Anwar Ali Sarkar (1952) SCR 284, Devi Das Gopal Krishnan and Ors. v. State of Punjab and Ors. (supra) and A.N. Parasuraman and others v. State of Tamil Nadu (1989) 4 SCC 683 to support the conclusion recorded by the High Court that Section 32 (5A) is a piece of excessive delegation. 45. The issue relating to excessive delegation of legislative powers has engaged the attention of this Court for the last more than half century. In Devi Das Gopal Krishnan and Ors. v. State of Punjab and Ors. (supra), Kunnathat Thathunni Moopil Nair v. State of Kerala ( 1961) 3 SCR 77 and A.N. Parasuraman and others v. State of Tamil Nadu (supra), the Court did not favour a liberal application of the concept of delegation of legislative powers but in a large number of other judgments including Jyoti Pershad v. the Administrator for the Union Territory of Delhi (supra), Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC 67 127, Maharashtra State Board of S.H.S.E. v. Paritosh Bhupeshkumar Sheth (1984) 4 SCC 27, Kishan Prakash Sharma v. Union of India (2001) 5 SCC 212 and Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1, the Court recognized that it is not possible for the legislature to enact laws with minute details to deal with increasing complexities of governance in a political democracy, and held that the legislature can lay down broad policy principles and guidelines and leave the details to be worked out by the executive and the agencies/instrumentalities of the State and that the delegation of the powers upon such authorities to implement the legislative policy cannot be castigated as excessive delegation of the legislative power. 46. In Jyoti Pershad v. the Administrator for the Union Territory of Delhi (supra), the Court dealt with the question whether Section 19(1) of the Slum Areas (Improvement and Clearance) Act, 1956 which adversely affected the decree of eviction obtained by the landlord against the tenant was a piece of excessive delegation. It was argued that the power vested in the competent authority to withhold eviction in pursuance of orders or decrees 68 of the Court was ultra vires the provisions of the Constitution. While repelling this argument, the Court referred to the provisions of the 1956 Act and observed: "In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law." (emphasis supplied) 47. In Maharashtra State Board of S.H.S.E. v. Paritosh Bhupeshkumar Sheth, (supra), the Court while dealing with the 69 issue of excessive delegation of power to the Board of Secondary Education observed: "So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statute." 48. In Ajoy Kumar Banerjee v. Union of India (supra), the three Judge Bench, while interpreting the provisions of the General Insurance Business (Nationalisation) Act, 1972, observed: "The growth of legislative power of the executive is a significant development of the twentieth century. The theory of laissez-faire has been given a go-by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well-being of the people. Most of the modern socio-economic legislations passed by the 70 Legislature lay down the guiding principles of the legislative policy. The Legislatures, because of limitation imposed upon them and the time factor, hardly can go into the matters in detail. The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modem welfare State. Regarding delegated legislation, the principle which has been well established is that Legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted. The legitimacy of delegated legislation depends upon its being used as ancillary which the Legislature considers to be necessary for the purpose of exercising its legislative power effectively and completely. The Legislature must retain in its own hand the essential legislative function which consists in declaring the legislative policy and lay down the standard which is to be enacted into a rule of law, and what can be delegated in the task of subordinate legislation which by very nature is ancillary to the statute which delegates the power to make it effective provided the legislative policy is enunciated with sufficient clearness or a standard laid down. The courts cannot and do not interfere on the discretion that undoubtedly rests with the Legislature itself in determining the extent of the delegated power in a particular case." (emphasis supplied) 49. In Kishan Prakash Sharma v. Union of India (2001) 5 SCC 71 212, the Constitution Bench speaking through Rajendra Babu, J. (as he then was), summed up the principle of delegated legislation in the following words: "The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delegatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including 72 its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive." (emphasis supplied) 50. In Union of India v. Azadi Bachao Andolan (supra), the Court was called upon to consider the constitutionality of the Indo-Mauritius Double Taxation Avoidance Convention, 1983. While rejecting the argument that Section 90 of the Income Tax Act, under which the Treaty is said to have been entered, amounted to delegation of the essential legislative functions, the Court observed: "The question whether a particular delegated legislation is in excess of the power of the supporting legislation conferred on the delegate, has to be determined with regard not only to specific provisions contained in the relevant statute conferring the power to make rules or regulations, but also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be 73 wholly wrong for the court to substitute its own opinion as to what principle or policy would best serve the objects and purposes of the Act; nor is it open to the court to sit in judgment over the wisdom, the effectiveness or otherwise of the policy, so as to declare a regulation ultra vires merely on the ground that, in the view of the court, the impugned provision will not help to carry through the object and purposes of the Act." (emphasis supplied) 51. The principle which can be deduced from the above noted precedents is that while examining challenge to the constitutionality of a statutory provision on the ground of excessive delegation, the Court must look into the policy underlying the particular legislation and this can be done by making a reference to the Preamble, the objects sought to be achieved by the particular legislation and the scheme thereof and that the Court would not sit over the wisdom of the legislature and nullify the provisions under which the power to implement the particular provision is conferred upon the executive authorities. 52. The policy underlying the 1976 Act is clearly discernable from the Preamble of the Town Planning Act and the 1976 Act 74 and the objects sought to be achieved by the two legislations, namely, development of the City of Bangalore and areas adjacent thereto. The Town Planning Act was enacted for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the entire State including the City of Bangalore. By virtue of Section 67 of the 1976 Act and with the insertion of Section 81-B in the Town Planning Act by Act No.12 of 1976, the BDA became the Local Planning Authority for the local planning area comprising the City of Bangalore with jurisdiction over an area which the City Planning Authority for the City of Bangalore had immediately before the constitution of the BDA and the latter has been empowered to exercise the powers, perform the functions and discharge the duties under the Town Planning Act as if it were a Local Planning Authority constituted for the Bangalore City. In other words, w.e.f. 20.12.1975, i.e., the date on which the 1976 Act was enforced, the BDA acquired the status of a Local Planning Authority as defined in Section 2(7) read with Section 4(C) of the Town Planning Act in respect of the City of Bangalore and thereby acquired the powers which were earlier vested in the 75 Local Planning Authority constituted for the Bangalore City. The objects sought to be achieved by the legislature by enacting the Town Planning Act were to create conditions favourable for planning and replanning of the urban and rural areas in the State so that full civic and social amenities could be available for the people of the State; to stop uncontrolled development of land due to land speculation and profiteering in land; to preserve and improve existing recreational facilities and other amenities contributing towards the balance use of land and future growth of populated areas in the State ensuring desirable standards of environment, health, hygiene and creation of facilities of orderly growth of industry and commerce. The Town Planning Act also envisaged preparation of the town planning schemes and execution thereof by the Planning Authorities constituted for the specified areas. Section 9 (unamended) envisaged preparation of outline development plan incorporating therein the various matters enumerated in Section 12(1), preparation of comprehensive development plan by including the proposal for comprehensive zoning of land use for the planning area; building complete street pattern indicating major and minor roads, 76 National and State highways and traffic circulation pattern for meeting immediate and future requirements; areas for new housing and new areas earmarked for future development and expansion. The definition of "development" contained in Section 2(j) of the 1976 Act is somewhat similar to the one contained in Section 1(c) of the Town Planning Act. Section 14 of the 1976 Act lays down that the objects of the BDA shall be to promote and secure the development of the Bangalore Metropolitan Area and for that purpose, the BDA shall have the power to acquire, hold manage and dispose of movable and immovable property, whether within or outside the area under its jurisdiction. "Bangalore Metropolitan Area" has been defined under Section 2(c) of the 1976 Act. It consists of the following areas: (a) area comprising the City of Bangalore as defined in the City of Bangalore Municipal Corporation Act, 1949 which is now replaced by the Karnataka Municipal Corporations Act, 1976, (b) the areas where the City of Bangalore Improvement Act, 1945 was immediately before the commencement of the 1976 Act in force, and (c) such other areas adjacent to the aforesaid as the Government may from time to time by notification specify. 77 Section 15 empowers the BDA to draw up detailed schemes and undertake works for the development of the Bangalore Metropolitan Area and incur expenditure for that purpose. It can also take up any new or additional development scheme on its own, subject to the availability of sufficient resources. If a local authority provides necessary funds for framing and carrying out any scheme, then too, the BDA can take up such scheme. Under Section 15(3), which contains a non obstante clause, the Government can issue direction to the BDA to take up any development scheme or work and execute it subject to such terms and conditions as may be specified by it. Section 16 enumerates the matters which are required to be included in the scheme, i.e., the acquisition of land necessary for or affected by the execution of the scheme, laying or relaying of land including construction and reconstruction of buildings and formation and alteration of streets, drainage, water supply and electricity, reservation of land for public parks or playgrounds and at least 10% of the total area for civil amenities. The development scheme may also provide for raising of any land to facilitate better drainage, forming of open spaces for better ventilation of 78 the area comprised in the scheme or any adjoining area and the sanitary arrangement. Sections 17 to 19 contain the mechanism for finalisation of the scheme and its approval by the State Government as also the acquisition of land for the purposes of the scheme. Sections 20 to 26 provide for levy and collection of betterment tax. Section 27 specifies the time limit of five years from the date of publication of the scheme in the Official Gazette for execution of the scheme as also consequence of non execution. Section 28-A casts a duty on the BDA to ensure proper maintenance, lighting and cleansing of the streets and the drainage, sanitary arrangement and water supply in respect of the streets formed by it. Section 32 provides for formation of new extensions or layouts or making of new private streets, which can be done only after obtaining express sanction from the BDA and subject to the conditions which may be specified by the BDA. Section 32(5) lays down that the BDA can call upon the applicant to deposit the sums necessary for meeting the expenditure for making roads, drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as may be indicated by the BDA, as a condition precedent to the 79 grant of application. Section 32(5A), which also contains a non obstante clause, empowers the BDA to require the applicant to deposit additional amount to meet a portion of the expenditure, which the BDA may determine towards the execution of any scheme or work for augmenting water supply, electricity, roads, transportation and such other amenities within the Bangalore Metropolitan Area. 53. The above survey of the relevant provisions of the 1961 and the 1976 Acts makes it clear that the basic object of the two enactments is to ensure planned development of the areas which formed part of the Bangalore Metropolitan Area as on 15.12.1975 and other adjacent areas which may be notified by the Government from time to time. The BDA is under an obligation to provide "amenities" as defined in Section 2(b) and "civic amenities" as defined in Section 2(bb) of the 1976 Act for the entire Bangalore Metropolitan Area. In exercise of the powers vested in it under Sections 15 and 16, the BDA can prepare detailed schemes for the development of the Bangalore Metropolitan Area and incur expenditure for implementing those 80 schemes, which are termed as development schemes. The expenditure incurred by the BDA in the implementation of the development schemes can be loaded on the beneficiaries of the development schemes. By virtue of Notifications dated 1.11.1965 and 13.3.1984 issued under Section 4A(1) of the Town Planning Act and notification dated 1.3.1988 issued under Section 2(c) of the 1976 Act, hundreds of villages adjacent to the City of Bangalore were merged in the Bangalore Metropolitan Area. For these areas, the BDA was and is bound to provide amenities like water, electricity, streets, roads, sewerage, transport system, etc., which are available to the existing Metropolitan Area of the City of Bangalore. This task could not have been accomplished by the BDA alone from its meager fiscal resources. Therefore, the State Government, the BDA and other instrumentalities of the State like BWSSB had to pool their resources as also man and material to augment water supply, electricity and transport facilities and also make provision for construction of new roads, layouts, etc. The BDA had to contribute to the funds required for new water supply scheme, generation of additional electricity and development of a mass rapid transport system to decongest the 81 Bangalore Metropolitan Area. This is the reason why the State Government passed orders dated 25.3.1987 and 12.1.1993, which could appropriately be treated as directions issued under Section 65 of the 1976 Act for carrying out the purposes of the Act and approved the proposal for loading the BDA's share of expenditure in the execution of the Cauvery Scheme on all the layouts to be formed thereafter. With the insertion of Section 32(5A) in the 1976 Act, these orders acquired the legislative mandate. In terms of that section, the BDA has been vested with the power to call upon the applicants desirous of forming new extensions or layouts or private streets to pay a specified sum in addition to the sums referred to in Section 32(5) to meet a portion of the expenditure incurred for the execution of any scheme or work for augmenting water supply, electricity, roads, transportation and other amenities. 54. At the cost of repetition, it will be apposite to observe that apart from the Preamble and the objects of the 1961 and 1976 Acts and the scheme of the two enactments, the expression "such portion of the expenditure as the Authority may determine 82 towards the execution of any scheme or work for augmenting water supply, electricity, roads, transportation and such other amenities" supplies sufficient guidance for the exercise of power by the BDA under Section 32(5A) and it is not possible to agree with the learned counsel for the respondents that the section confers unbridled and uncanalised power upon the BDA to demand an unspecified amount from those desirous of forming private layouts. It is needless to say that the exercise of power by the BDA under Section 32(5A) is always subject to directions which can be given by the State Government under Section 65. We may add that it could not have been possible for the legislature to make provision for effective implementation of the provisions contained in the 1961 and 1976 Acts for the development of the Bangalore Metropolitan Area and this task had to be delegated to some other agency/instrumentality of the State. 55. The above discussion leads to the conclusion that Section 32(5A) does not suffer from the vice of excessive delegation and the legislative guidelines can be traced in the Preamble of the 83 1961 and 1976 Acts and the object and scheme of the two legislations. Question (3) 56. The next question which calls for determination is whether the demand of charges under the Cauvery Scheme, etc. amounts to imposition of tax and is, therefore, ultra vires the provision of Article 265 of the Constitution. 57. The debate whether a particular levy can be treated as `fee' or `tax' and whether in the absence of direct evidence of quid pro quo, the levy would always be treated as tax has engaged the attention of this Court and almost all the High Courts for the last more than four decades. 58. In Kewal Krishan Puri v. State of Punjab (1980) 1 SCC 416, the Constitution Bench considered the question whether the resolutions passed by the Agriculture Market Committees in Punjab and Haryana to increase the market fee on the agricultural produce bought and sold by the licensees in the notified market areas from Rs. 2/- to Rs. 3/- for every Rs. 100/- 84 were legally sustainable. After noticing the distinction between tax and fee and a large number of precedents, the Constitution Bench culled out the following principles: "(1) That the amount of fee realised must be earmarked for rendering services to the licensees in the notified market area and a good and substantial portion of it must be shown to be expended for this purpose. (2) That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce. (3) That while rendering services in the market area for the purposes of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefits must be conferred on them which have a direct, close and reasonable correlation between the licensees and the transactions. (4) That while conferring some special benefits on the licensees it is permissible to render such service in the market which may be in the general interest of all concerned with the transactions taking place in the market. (5) That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefiting the traders also. Such an indirect and 85 remote benefit to the traders is in no sense a special benefit to them. (6) That the element of quid pro quo may not be possible, or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee. (7) At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services of the kind mentioned above." 59. The ratio of the aforesaid judgment was substantially diluted in Southern Pharmaceuticals and Chemicals, Trichur and others v. State of Kerala and others (1981) 4 SCC 391. In the latter decision, the Court considered the constitutional validity of Sections 12-A, 12-B, 14(e) and (f) and 68-A of the Kerala Abkari Act 1077. One of the questions considered by the 3-Judge Bench was whether the levy of supervisory charges under Section 14 (e) of the Act and Rule 16(4) of the Kerala Rectified Spirit Rules, 1972 could be regarded as fee even though there was no quid pro quo between the levy and the services rendered by the State. The 86 Bench referred to the distinction between tax and fee highlighted in the Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Shirur Mutt (1954) SCR 1005 and proceeded to observe: ""Fees" are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith. Thus, fees are nothing but payment for some special privilege granted on service rendered. Taxes and taxation are, therefore, distinguishable from various other contributions, charges, or burdens paid or imposed for particular purposes and under particular powers or functions of the Government. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence, are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure for rendering the service is not by itself decisive. That is because the Constitution did not contemplate it to be an essential element of a fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax. We may, in this connection, refer with profit to the observations of Seervai in his Constitutional Law, to the effect: 87 "It is submitted that as recognised by Mukherjea, J. himself, the fact that the collections are not merged in the consolidated fund, is not conclusive, though that fact may enable a court to say that very important feature of a fee was present. But the attention of the Supreme Court does not appear to have been called to Article 266 which requires that all revenues of the Union of India and the States must go into their respective consolidated funds and all other public moneys must go into the respective public accounts of the Union and the States. It is submitted that if the services rendered are not by a separate body like the Charity Commissioner, but by a government department, the character of the imposition would not change because under Article 266 the moneys collected for the services must be credited to the consolidated fund. It may be mentioned that the element of quid pro quo is not necessarily absent in every tax."" (emphasis supplied) The three Judge Bench also referred to the Constitution Bench judgment in Kewal Krishna Puri v. State of Punjab (supra) and observed: "To our mind, these observations are not intended and meant as laying down a rule of universal application. The Court was considering the rate of a market fee, and the question was whether there was any justification for the increase in rate from Rs 2 per every hundred rupees to Rs 3. There was no material placed to justify the increase in rate of the fee and, therefore, it partook the nature of a tax. It seems that 88 the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee. The traditional concept of quid pro quo is undergoing a transformation." 60. The test laid down in Kewal Krishna Puri v. State of Punjab (supra) was again considered in Sreenivasa General Traders v. State of A.P. (1983) 4 SCC 353. In that case, the petitioners had challenged the constitutional validity of the increase in the rate of market fee levied under the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966 from 50 paise to Rs. 1/- on every Rs. 100/- of the aggregate amount for which the notified agricultural produce, etc. were purchased or sold in the notified market area. The petitioners relied upon the proposition laid down in Kewal Krishna Puri's case (supra) in support of their argument that in the absence of any evidence or correlation between the levy and special services rendered by the Market Committees to the beneficiaries, the levy should be regarded as tax. The three Judge Bench referred to the proposition laid down in Kewal Krishna Puri's case (supra) and observed: "It would appear that there are certain observations to be found in the judgment in Kewal Krishan Puri case 89 which were really not necessary for purposes of the decision and go beyond the occasion and therefore they have no binding authority though they may have merely persuasive value. The observation made therein seeking to quantify the extent of correlation between the amount of fee collected and the cost of rendition of service, namely: (SCC p. 435, para 23): "At least a good and substantial portion of the amount collected on account of fees, maybe in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the payer of fee", appears to be an obiter. The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest if the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable 90 relationship" between the levy of the fee and the services rendered." 61. In Kishan Lal Lakhmi Chand v. State of Haryana 1993 Supp (4) SCC 461, while dealing with the constitutionality of the levy of cess under the Haryana Rural Development Act, 1986, the three Judge Bench referred to the scheme of the Act and held that from the scheme of the Act it would be clear that there is a broad, reasonable and general corelationship between the levy and the resultant benefit to the producer of the agricultural produce, dealer and purchasers as a class though no single payer of the fee receives direct or personal benefit from those services. Though the general public may be benefited from some of the services like laying roads, the primary service was to the producer, dealer and purchaser of the agricultural produce. 62. In Krishi Upaj Mandi Samiti v. Orient Paper & Industries Ltd. (1995) 1 SCC 655 the two Judge Bench reviewed and analysed various precedents including the judgments in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), Mahant Sri 91 Jagannath Ramanuj Das v. State of Orissa (1954) SCR 1046, Ratilal Panachand Gandhi v. State of Bombay (1954) SCR 1055, H.H. Sadhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments 1963 Supp (2) SCR 302, Corporation of Calcutta v. Liberty Cinema (supra), Kewal Krishna Puri v. State of Punjab (supra), Sreenivasa General Traders v. State of A.P. (supra), Om Parkash Agarwal v. Giri Raj Kishori (1986) 1 SCC 722, Kishan Lal Lakhmi Chand v. State of Haryana (supra) and culled out 9 propositions, of which proposition No. 7 is extracted below: "(7) It is not a postulate of a fee that it must have relation to the actual service rendered. However, the rendering of service has to be established. The service, further, cannot be remote. The test of quid pro quo is not to be satisfied with close or proximate relationship in all kinds of fees. A good and substantial portion of the fee must, however, be shown to be expended for the purpose for which the fee is levied. It is not necessary to confer the whole of the benefit on the payers of the fee but some special benefit must be conferred on them which has a direct and reasonable corelation to the fee. While conferring some special benefits on the payers of the fees, it is permissible to render service in the general interest of all concerned. The element of quid pro quo is not possible or even necessary to be established with arithmetical exactitude. But it must be established broadly and reasonably that the amount is being spent for 92 rendering services to those on whom the burden of the fee falls. There is no postulate of a fee that it must have a direct relation to the actual services rendered by the authorities to each individual to obtain the benefit of the service. The element of quid pro quo in the strict sense is not always a sine qua non for a fee. The element of quid pro quo is not necessarily absent in every tax. It is enough if there is a broad, reasonable and general corelationship between the levy and the resultant benefit to the class of people on which the fee is levied though no single payer of the fee receives direct or personal benefit from those services. It is immaterial that the general public may also be benefited from some of the services if the primary service intended is for the payers of the fees." 63. In I.T.C. Ltd. v. State of Karnataka 1985 (Supp) SCC 476, another three Judge Bench considered the validity of levy and collection of market fee from sellers of specified agricultural produce. Sabyasachi Mukharji, J. (as he then was), with whom Fazal Ali, J. (as he then was) agreed, laid down the following principles: "(1) there should be relationship between service and fee, (2) that the relationship is reasonable cannot be established with mathematical exactitude in the sense that both sides must be equally balanced, (3) in the course of rendering such services to the payers of the fee if some other benefits accrue or arise to others, quid pro quo is not destroyed. The concept 93 of quid pro quo should be judged in the context of the present days -- a concept of markets which are expected to render various services and provide various amenities, and these benefits cannot be divorced from the benefits accruing incidentally to others, (4) a reasonable projection for the future years of practical scheme is permissible, and (5) services rendered must be to the users of those markets or to the subsequent users of those markets as a class. Though fee is not levied as a part of common burden yet service and payment cannot exactly be balanced. (6) The primary object and the essential purpose of the imposition must be looked into." 64. If the conditions imposed by the BDA requiring the respondents to pay for augmentation of water supply, electricity, transport, etc. are scrutinized in the light of the principles laid down in Sreenivasa General Traders v. State of A.P. (supra), Kishan Lal Lakhmi Chand v. State of Haryana (supra) and I.T.C. Ltd. v. State of Karnataka (supra), it cannot be said that the demand made by the BDA amounts to levy of tax and is ultra vires Article 265 of the Constitution. 65. Under the 1976 Act, the BDA is obliged to provide different types of amenities to the population of the Bangalore 94 Metropolitan Area including the allottees of the sites in the layouts prepared by house building societies. It is quite possible that they may not be the direct beneficiaries of one or the other amenities made available by the BDA, but this cannot detract from the fact that they will certainly be benefited by the construction of the Outer Ring Road and Intermediate Ring Road, Mass Rapid Transport System, etc. They will also be the ultimate beneficiaries of the Cauvery Scheme because availability of additional 270 MLD water to Bangalore will enable BWSSB to spare water for the private layouts. It is neither the pleaded case of the respondents nor it has been argued that the allottees of sites in the layouts to be developed by the private societies will not get benefit of amenities provided by the BDA. Thus, charges demanded by the BDA under Section 32(5A) cannot be termed as tax and declared unconstitutional on the ground that the same are not sanctioned by the law enacted by competent legislature. Question (4) 66. The only issue which survives for consideration is whether the charges demanded by the BDA are totally disproportionate to 95 its contribution towards Cauvery Water Scheme, Ring Road, Mass Rapid Transport System, etc. We may have examined the issue in detail but in view of the affidavit dated 11.11.2009 filed by Shri Siddaiah, the then Commissioner, BDA to the effect that only Rs. 34.55 crores have been collected between February, 1988 to 4.6.2005 towards the Cauvery Scheme and a sum of Rs. 15.15 crores has been collected by way of Ring Road surcharge between 1992-93 and 2005-06 and that the State Government has directed that henceforth Ring Road surcharge, the Cauvery Water Cess and MRTS Cess should not be levied till appropriate decision is taken, we do not consider it necessary to adjudicate the controversy, more so, because in the written arguments filed on behalf of the BDA it has been categorically stated that the Government has to take a decision about the pending demands and the Court may issue appropriate direction in the matter, which the BDA will comply. In our view, ends of justice will be served by directing the State Government to take appropriate decision in the light of communication dated 03.05.2005. 96 67. So far as the levy of supervision charges, improvement charges, examination charges, slum clearance development charges and MRTS cess is concerned, it is appropriate to mention that the High Court has not assigned any reason for declaring the levy of these charges to be illegal. Therefore, that part of the impugned order cannot be sustained. Nevertheless, we feel that the State Government should take appropriate decision in the matter of levy of these charges as well and determine whether the same were disproportionate to the expenses incurred by it, the BDA or any other agency/instrumentality of the State. 68. In the result, the appeals are allowed, the impugned order is set aside and the writ petitions filed by the respondents are dismissed subject to the direction that within three months from the date of receipt/production of the copy of this judgment, the State Government shall take appropriate decision in the context of communication dated 03.05.2005. Within this period, 97 the State Government shall also decide whether the levy of supervision charges, improvement charges, examination charges, slum clearance development charges and MRTS cess at the rates specified in the communications of the BDA was excessive. The decision of the State Government should be communicated to the respondents within next four weeks. If any of the respondents feel aggrieved by the decision of the State Government then it shall be free to avail appropriate legal remedy. The parties shall bear their respective costs. ........................................J. [G.S. Singhvi] ........................................J. [Asok Kumar Ganguly] New Delhi, January 24, 2012.

The buildings with respect whereto action was proposed to be taken or was taken by DPCC, are of three kinds: (i) Residential Housing Complexes, (ii) Commercial Shopping Complexes, and (iii) Shopping Malls. Actions were initiated or decisions were taken on the allegation that with respect to the buildings constructed, the writ petitioners had not obtained a „consent to establish‟ as required under The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as „the Water Act‟) and „consent to operate‟ as required under The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as „the Air Act‟).

LPA 895/2010 & connected matters Page 1 of 38 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 16th January 2012 Judgment Pronounced on: 23rd January, 2012 + LPA 895/2010 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through: Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus SPLENDOR LANDBASE LTD ..... Respondent Through: Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 1/2011 & CM No.6781/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus SACHDEVA BUILDON PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 6/2011 & CM No.6779/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010 & connected matters Page 2 of 38 versus VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 7/2011 & CM No.6780/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 8/2011 & CM No.6782/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay Goswami, Advocates LPA 9/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus MANISH BUILDWELL PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 895/2010 & connected matters Page 3 of 38 LPA 10/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus MANISH BUILDWELL PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 11/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN LAND DEVELOPERS PVT LTD & ANR ..... Respondents Through None LPA 22/2011 & CM No.6824/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus PANKAJ BUILDWELL LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 23/2011 & CM No.6832/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant LPA 895/2010 & connected matters Page 4 of 38 Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus RAJESH PROJECTS INDIA PVT LTD & ORS. ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 24/2011 & CM No.8168/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BEST REALTORS (INDIA) LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 25/2011 & CM No.6828/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BEST CITY DEVELOPERS (INDIA) PVT LTD. & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 895/2010 & connected matters Page 5 of 38 LPA 26/2011 & CM No.6831/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus HOME LINKERS PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 27/2011 & CM No.6833/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus RAJESH PROJECTS INDIA PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 28/2011 & CM No.6826/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS. ..... Respondents LPA 895/2010 & connected matters Page 6 of 38 Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 45/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus JINDAL BIOCHEM PVT LTD & ORS ..... Respondents Through Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 46/2011 & CM No.8164/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus AS BUILDWELL PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 47/2011 & CM No.6825/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus LPA 895/2010 & connected matters Page 7 of 38 MAITRI MUTUAL BENEFITS LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 48/2011 & CM No.6823/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus NIRVAN HIRE PURCHASE LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 50/2011 & CM No.6827/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus NIPUN BUILDERS & DEVELOPERS PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 51/2011& CM No.6829/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010 & connected matters Page 8 of 38 versus VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 53/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus ESS CEE CEE & ASSOCIATES (INDIA) PVT LTD .. Respondent Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay Goswami, Advocates LPA 54/2011 & CM No.6004/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus FARGO ESTATES PVT LTD ..... Respondent Through Mr.Ankit Jain, Advocate LPA 58/2011& CM No.6830/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus LPA 895/2010 & connected matters Page 9 of 38 VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 94/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus DLF RETAILER DEVELOPERS LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 95/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus LAXMI BUILDTECH PVT LTD & ANR ..... Respondents Through Mr.Kailash Vasdev, Sr. Advocate with Ms.Neoma Vasdev Gupta, Ms.Ekta Mehta and Ms.Joanne Pudussery, Advocates for respondent No.1. Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 96/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, LPA 895/2010 & connected matters Page 10 of 38 Advocates with Mr.Dinesh Jindal, L.O. versus MANISH BUILDWELL PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 97/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BRIGHTWAYS HOUSING & DEVELOPMENT LTD & ANR ..... Respondents Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, Advocates for R-1. Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 98/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus DLF COMMERCIAL DEVELOPERS LTD ..... Respondent LPA 895/2010 & connected matters Page 11 of 38 Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 99/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus GALLERIA PROPERTY MANAGEMENT SERVICES PVT LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 100/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus PROSPEROUS ESTATES PVT LTD ..... Respondent Through None LPA 101/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus REGENCY PARK PROPERTY MANAGEMENT SERVICES PVT LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 895/2010 & connected matters Page 12 of 38 LPA 102/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus PALIWAL DEVELOPERS LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 103/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus RIDGE VIEW CONSTRUCTION PVT LTD ..... Respondent Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, Advocates. LPA 104/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus RC SOOD & CO PVT LTD ..... Respondent Through Mr.Shobhit Chandra, Advocate LPA 895/2010 & connected matters Page 13 of 38 LPA 709/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus LODHI PROPERTY CO LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 710/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BHARTI REALTY LTD ..... Respondent Through Mr.Dushyant Manocha and Ms.Tarunima Vijra, Advocates LPA 866/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus ANUSH FINLEASE & CONSTRUCTION PVT LTD ..... Respondent Through Mr.Ajay Kumar and Mr.Naveen Tayal, Advocates LPA 895/2010 & connected matters Page 14 of 38 LPA 867/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus TIRUPATI INFRAPROJECTS PVT LTD ..... Respondent Through Mr.Ajay Kumar and Mr.Naveen Tayal, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG, J. 1. A batch of 38 writ petitions was decided by a learned Single Judge vide order dated September 30, 2010. The said decision has been followed subsequently by another learned Single Judge. Instant appeals lay a challenge to the said decisions pronounced by the learned Single Judges of this Court; and since the reasoned decision is the one which was pronounced on September 30, 2010, learned counsel for the parties conceded that it is said decision which needs to be reflected upon by us in the appeal(s). 2. Writ petitions were filed challenging notices issued by the Delhi Pollution Control Committee (DPCC) to the writ petitioners or penalties levied, which were paid under protest or bank guarantees submitted by the writ petitioners, which were under threat of being invoked. The petitions have succeeded, not in full, but in part. Directions have been issued to DPCC to take LPA 895/2010 & connected matters Page 15 of 38 action afresh and guided by the decision of the learned Single Judge. 3. The buildings with respect whereto action was proposed to be taken or was taken by DPCC, are of three kinds: (i) Residential Housing Complexes, (ii) Commercial Shopping Complexes, and (iii) Shopping Malls. Actions were initiated or decisions were taken on the allegation that with respect to the buildings constructed, the writ petitioners had not obtained a „consent to establish‟ as required under The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as „the Water Act‟) and „consent to operate‟ as required under The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as „the Air Act‟). 4. Issues have been debated before the learned Single Judge and even before us with reference to Sections 2(g), 2(gg), 2(k), Section 25 and Section 33A of the Water Act, and Sections 2(a), 2(j), 2(k), Section 21 and Section 31A of the Air Act. Thus, we begin our chartered journey by noting the said provisions. 5. Section 2(g), 2(gg), 2(k), relevant part of Section 25 and Section 33A of The Water (Prevention and Control of Pollution) Act, 1974 read as under:- “2. Definitions.– In this Act, unless the context otherwise requires,– (a) ...... (b) ...... (c) ...... (d) ...... (e) ...... (f) ...... LPA 895/2010 & connected matters Page 16 of 38 (g) „sewage effluent‟ means effluent from any sewerage system or sewage disposal works and includes sullage from open drains; (gg) „sewer‟ means any conduit pipe or channel, open or closed, carrying sewage or trade effluent; (h) ....... (i) ....... (j) ....... (k) „trade effluent‟ includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any industry, operation or process, or treatment and disposal system, other than domestic sewage. 25. Restrictions on new outlets and new discharges.– (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,– (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or (b) ......... (c) ......... Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, LPA 895/2010 & connected matters Page 17 of 38 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application. (2) ........ (3) ........ (4) ........ (5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge. (6) ........ (7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. (8) ....... LPA 895/2010 & connected matters Page 18 of 38 33A. Power to give directions.– Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.– For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct– (a) the closure, prohibition or regulation of any industry, operation or process; or (b) the stoppage or regulation of supply of electricity, water or any other service.” 6. Section 2(a), 2(j), 2(k), relevant part of Section 21 and Section 31A of The Air (Prevention and Control of Pollution) Act, 1981 read as under:- 2. Definitions.– In this Act, unless the context otherwise requires,– (a) „air pollutant‟ means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment; (b) ..... (c) ..... (d) ..... (e) ..... LPA 895/2010 & connected matters Page 19 of 38 (f) ..... (g) ..... (h) ..... (i) ..... (j) „emission‟ means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet; (k) „industrial plant‟ means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere; 21. Restrictions on use of certain industrial plants.– (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area: Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application. (2) ....... (3) ...... (4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by order LPA 895/2010 & connected matters Page 20 of 38 in writing, and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent: Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled: Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shall be given to the person concerned. (5) ........ (6) ........ (7) ....... 31A. Power to give directions.– Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, office or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.– For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct– LPA 895/2010 & connected matters Page 21 of 38 (a) the closure, prohibition or regulation of any industry, operation or process; or (b) the stoppage or regulation of supply of electricity, water or any other service. 7. With reference to the Water Act as originally framed in the year 1974 and as amended in the year 1988 and with reference to the Statement of Objects and Reasons of the Amending Act, the learned Single Judge has opined that the legislative amendments carried out in the original Water Act were intended to expand the scope of the Water Act. The learned Single Judge has highlighted that the expression „establish any industry, operation or process or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent‟ in clause (a) of Sub-Section (1) of Section 25 made it clear that the requirement to obtain previous consent to establish any industry, operation or process was no longer restricted to trade effluent being discharged but would also encompass if „sewage effluent‟ was discharged and with reference to the definition of „sewage effluent‟ as per Section 2(g), has held that the same would include sewage of any kind, including domestic sewage. The learned Single Judge has also noted the expanded definition of „trade effluent‟ as per Section 2(k) of the Water Act. Noting the definition of the words „operation‟ and „process‟ in para 12 of the decision, and thereafter noting the decisions that purposive construction needs to be followed where the mischief which existed before passing the statute was detected and was intended to be remedied, the learned Single Judge has concluded that collective operation or process of LPA 895/2010 & connected matters Page 22 of 38 bathing in the bathroom and such processes as take place in the toilet and cooking and washing in the kitchen would be operations and processes contemplated by Section 25(1)(a) of the Water Act for its applicability to residential complexes. This is the conclusion arrived at in para 16, but in the immediate next para i.e. para 17, the learned Single Judge has lodged a caveat by stating that he was not answering the question with reference to single storeyed constructions. 8. With reference to the commercial complexes i.e. Commercial Shopping Complexes and Shopping Malls, the learned Single Judge has held that the definition of „trade effluent‟ as per Section 2(k) would encompass all kinds of non-domestic sewage and has thus held that these buildings would be governed by clause (a) of Sub-Section 1 of Section 25 of the Water Act. 9. As regards the very act of constructing a building, in paras 19 and 20, the learned Single Judge has held that the very act of constructing a commercial shopping complex, shopping mall or a residential complex would make applicable clause (a) of Sub- Section 1 of Section 25 and for which the reasoning of the learned Single Judge is that construction of commercial shopping or residential complexes is likely to have impact on water pollution because large quantities of water are used during construction and are also discharged. 10. Since, in all the cases, DPCC rose from the slumber after buildings were completed and put to use, the learned Single Judge opined that DPCC could not levy penalties and for which remedial action, as per the learned Single Judge, was as provided LPA 895/2010 & connected matters Page 23 of 38 in Sub-Section 5 of Section 25 of the Water Act. 11. The argument of DPCC that the power to give directions under Section 33A of the Water Act has been negated by the learned Single Judge, with reference to various decisions cited which hold that the power to levy penalty has to be expressly conferred by the statute. 12. Pertaining to the Water Act, the learned Single Judge has summarized the legal position, in para 29 as under:- “29. The discussion so far on the legal position under the Water Act in relation to the petitioners may be summarized thus: (i) Section 25 (1) of the Water Act is intended to cover not just „industry‟ which discharges „trade effluent‟ but any „process or operation‟ that results in a discharge of „sewage‟ not limited to trade effluent. (ii) The words „operation or process‟ occurring in Section 25(1)(a) have to be given the widest possible meaning and scope. This approach is consistent with the SOR of the 1988 amendments to the Water Act which make it clear that the legislative intent was to expand the scope of the regulatory powers of the state PCC. The principle of ejusdem generis is therefore inapposite in the context. (iii) Commercial shopping complexes, shopping malls and even residential complexes are covered by Section 25(1)(a) of the Water Act. (iv) The liability under the Water Act does not get exempted only because the sewage LPA 895/2010 & connected matters Page 24 of 38 discharged from such complexes joins the main municipal sewerage system which may or may not be treated in keeping with the water pollution norms. (v) The pollution caused by discharge of domestic sewage from a residential complex or trade effluent from a commercial complex or industry during the construction phase as well as at any stage after the complex becomes functional would attract the various provisions of the Water Act. (vi) With the buildings in question having already been constructed without obtaining prior consent to establish, the direction of the DPCC that those who had failed to obtain prior consent to establish should now apply for such consent is a direction that is not capable of being complied with. Instead the DPCC should invoke the powers under Section 25(5) of the Water Act, issue show cause notices setting out the conditionalities required to be complied with within a time frame and upon failure to do so, invoke the powers to issue directions under Section 33A Water Act. (vii) The Water Act is in a separate domain and its provisions will have to be complied with notwithstanding that the MCD has the power to lay down a separate set of regulations and bye-laws for use of water. Where an applicant has not been communicated any decision of the DPCC for four months after the making of an application, the deeming provision of Section 25(7) would kick in and it would be deemed that the consent to establish has been granted. In such circumstances, Section 25(1) of the Water Act cannot LPA 895/2010 & connected matters Page 25 of 38 obviously thereafter be enforced.” 13. Discussing the applicability of the Air Act, as conceded to by learned counsel for the parties at the hearing of the appeal, the learned Single Judge has inadvertently referred to the preamended provisions of the Air Act, though the learned Single Judge has referred and noted the fact that the Air Act of 1981 was amended in the year 1988. 14. Pertaining to residential complexes, the learned Single Judge has noted the unamended Section 21 of the Air Act which did not have the word „establish‟ and had only the word „operate‟ in Sub-Section 1 thereof, and thus the learned Single Judge has held that no permission from DPCC is needed to establish residential complexes, but on the same reasoning as followed in paras 19 and 20 pertaining to the Water Act, has held that during construction phase of residential complexes, permission under the Air Act has to be obtained. Qua shopping complexes and shopping malls, it has been held that under the Air Act, for these complexes, to operate them, prior permission has to be obtained as also during construction phase. 15. The learned Single Judge has summarized the position under the Air Act, in para 41 as under:- “41. The position under the Air Act may be summarized: (i) A collective reading of Section 21(1) of the Air Act with Section 2(a), 2(b) and 2(k) thereof leads this Court to the conclusion that a commercial shopping complex or a shopping mall would be covered within the scope of Section 21(1) of the Air Act. LPA 895/2010 & connected matters Page 26 of 38 (ii) The definition of „air pollution‟ under Section 2(a) read with Section 21(1) of the Air Act, and the fact that the commercial shopping complexes or shopping malls are going to be used for a trade activity, is sufficient to attract the provisions of Section 21(1) of the Air Act. (iii) As far as a purely residential complex is concerned, on the present wording of Section 21(1) of the Air Act, there is no requirement of obtaining the prior consent of the DPCC to operate. (iv) During the construction phase and after the complex becomes functional, every building, whether it is a commercial shopping complex or a shopping mall or a residential complex, will have to comply with the norms under the Air Act and the Water Act and for that matter the EPA. (v) Where the construction of a commercial shopping complex or shopping mall has been allowed to be completed without a prior consent to operate, the DPCC can inspect the building, issue a show cause notice requiring time bound compliance with the conditionalities imposed by it under the Air Act failing which it can issue directions under Section 31A Air Act.” 16. A perusal of Section 25 of the Water Act would reveal, on a bare reading thereof, that without the previous consent of the State Pollution Board, „no person could establish or take any steps to establish any industry, operation or process,…….. which is likely to discharge sewage or trade effluent ‟. Thus, even if sewage effluent as defined in Section 2(g) was discharged from any LPA 895/2010 & connected matters Page 27 of 38 industry, operation or process intended to be established, the requirement of prior consent would be necessary and to this extent the view taken by the learned Single Judge is correct. 17. But, what would encompass „any industry, operation or process‟? 18. The Water Act does not define, „industry‟, „operation‟ or „process‟. As held in the decisions reported as 1993 (3) SC 2529 Commissioner of Income Tax Orissa vs. M/s.N.C.Budhiraja & Co. and 2010 (320) ITR 420 (Delhi) Ansal Housing & Construction Ltd. vs. Commissioner of Income Tax, the ordinary dictionary meaning of „industry‟ or an „industrial undertaking‟ would not include the activity of construction. The word „operation‟ is defined, as noted by the learned Single Judge, in the New Shorter Oxford English Dictionary (Lesie Brown Ed.) as follows: “operation: An action, deed; exertion of force or influence; working, activity; an act of a practical or technical nature, esp one forming a step in a process.” 19. The same dictionary defines „process‟, as noted by the learned Single Judge, as under:- “process : The action or fact of going on or being carried on; a continuous series of actions, events or changes; a systematic series of actions or operations directed at a particular end.” 20. As noted herein above, applying purposive construction, the learned Single Judge has held, in para 15, that the two words „operation‟ and „process‟ have to be given their widest amplitude and meaning. The purposive construction LPA 895/2010 & connected matters Page 28 of 38 applied by the learned Single Judge is that widest amplitude needs to be given to Section 25(1)(a) of the Water Act. 21. The error committed by the learned Single Judge is to mechanically note the definition of „operation‟ and „process‟, and ignore the sweep of the span of the two words. We do so. Operation is defined as an activity or an act of a practical or technical nature, with emphasis of the acts forming „a step in a process‟. The word „process‟ is a going on action or a continuous series of actions „directed at a particular end‟ . Thus, an operation would be a working or an activity, where the core of the act constituting the activity is of a practical or technical nature especially one forming a step in a process, and since process is an going on action or a continuous series of action directed at a particular end, the conjoint reading of an operation and a process or even if the two have to be read disjunctively would mean that the expression „establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent‟ would mean to take steps to establish any industry, establishment or undertaking where the operation or process i.e. activity is of a practical or technical nature, at the core of which are ongoing acts, in a series, directed at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labeled as an operation or a process. 22. The view taken by the learned Single Judge pertaining LPA 895/2010 & connected matters Page 29 of 38 to shopping malls and commercial shopping complexes on the applicability of the Water Act is accordingly upheld and the view taken pertaining to the applicability of the Water Act to residential housing complexes is incorrect. 23. A building where shops would be made and in which shops goods or services would be sold as also shopping malls would be buildings where operation and or process is carried on for the reason they would be places where the activity carried on is of a practical or a technical nature and at the core of which activity would be ongoing acts, in a series, directed at a particular end i.e. if goods are purchased and sold, the sale and purchase of goods; and if service is rendered, the rendition of service directed towards a particular end. If from these buildings sewage is discharged, since sewage effluent as defined in Section 2(k) of the Water Act means effluent from any sewage system, if these buildings are intended to be established, necessary permission would be required from the Board under the Water Act. 24. With respect to the decisions reported as 1993 (3) SC 2529 Commissioner of Income Tax Orissa vs. M/s.N.C.Budhiraja & Co. and 2010 (320) ITR 420 (Delhi) Ansal Housing & Construction Ltd. vs. Commissioner of Income Tax, where it has been held that constructing a building per-se is not an industrial activity the view taken by the learned Single Judge that constructing a building, whether to be used for a residential purpose or to be used for a commercial shopping complex or for shopping malls would be an industrial activity; running contrary to the aforesaid judgments is incorrect. LPA 895/2010 & connected matters Page 30 of 38 25. The reasoning of the learned Single Judge to expand the scope of Section 25(1)(a) of the Water Act; that the object of the Water Act was to control water pollution in its widest amplitude and hence the reasoning that while constructing buildings, water is used and sometimes discharged thus requiring a wider meaning to be given, ignores that the Environment (Protection) Act 1986 deals with this larger issue in the context of „environment‟ therein being defined to include water, air and land and the inter relationship which exists amongst them and human beings and other living creatures, plants and micro-organisms. The said Act and the Rules framed under the said Act are wide enough to cover exploitation of water and the impact thereof on environment and we see no vacuum in the fight against environmental degradation, by understanding the various expressions and their meaning in Section 25(1)(a) of the Water Act as adopted by us. 26. A word on purposive construction. It simply means that while adopting a purposive approach, Courts should seek to give effect to the true purpose of legislation and must keep in view all material that bears on the background against which a legislation was effected and where more than one construction is possible, the one which eliminates the mischief identified should be favoured. But, where only one construction is possible, the Court is not to strain backwards and then bend forward followed by leaning to the left and then to the right to appropriate a space not intended to be appropriated by the legislation. The Water Act requires prior permission to establish any industry, operation or LPA 895/2010 & connected matters Page 31 of 38 process which is likely to discharge sewage or trade effluent. It is not intended to apply to all and sundry establishments. It is restricted to only when a building, housing an industry is sought to be established or a building in which an operation or a process is intended to be carried on where effluent or trade effluent would be discharged. 27. To summarize the position under the Water Act the position may be summarized thus: „Section 25(1) of the Water Act would apply where a building is proposed to be constructed to set up an industry or carry on an operation or a process as explained in para 21 above and this would mean that the Water Act would not apply to buildings housing residential apartments/units. It would apply to all other buildings where effluent or trade effluent is discharged, be they where manufacturing activity is carried on, sale or purchase of goods is carried on or services are provided. 28. Pertaining to the Air Act, there is a material difference in the language used in Section 21 of the said Act, vis-à-vis the language used in Section 25 of the Water Act. Whereas the Water Act requires a permission to establish any industry, operation or process, the Air Act restricts its span to prior permission being necessary only where it is intended to establish or operate any industrial plant. 29. Since the learned Single Judge has referred to the unamended provision and has ignored the amendments carried out to the Air Act in the year 1988, we note that as per the amended Section 21, the obligation to obtain the consent of the State Pollution Control Board is only to establish or operate any LPA 895/2010 & connected matters Page 32 of 38 industrial plant in an Air Pollution Control Area. Section 2(k) defines an „industrial plant‟ to mean any plant used for any industrial or trade purposes and emitting any air pollutant. 30. The learned Single Judge has read the unamended Section 21 of the Air Act to mean that prior consent is needed to operate an industrial plant. Since the decision of the learned Single Judge has not noted the language of the amended Section where the words „establish or‟ have been inserted prior to the word „operate‟, we need to re-look into the issue. 31. Highlighting the definition of the words „industrial plant‟ as defined in Section 2(k) of the Air Act, the learned Single Judge has noted that the definition expands the meaning of the words „industrial plant‟ to include a building used for a trade purpose and with reference to Section 21 of the Air Act has held that a building where trade is carried on the prior consent would be required to operate the building. 32. Since the learned Single Judge has noted the unamended Section 21 and since the amended Section 21 requires prior consent even to establish an industrial plant in an Air Pollution Control Area, agreeing with the reasoning of the learned Single Judge that in view of the extended definition of the expression „industrial plant‟, which includes a building where trade is carried on, the inevitable conclusion has to be that prior consent under the Air Act would be needed where a building is proposed to be constructed wherefrom trade would be carried on and since from a shopping mall and from a commercial shopping complex trade is carried on, we hold that prior consent under the Air Act LPA 895/2010 & connected matters Page 33 of 38 would be required when commercial shopping complexes and shopping malls are established i.e. at the commencement of the process of establishment i.e. before the building construction activity commences. 33. As noted herein above, the learned Single Judge has held construction per-se as requiring prior permission, both under the Water Act and the Air Act, and thus the learned Single Judge has held that under the Air Act, consent during construction phase would have to be obtained. 34. For our reasoning herein above pertaining to the Water Act, the said reasoning of the learned Single Judge pertaining to the Air Act is overruled, but would make no difference to the final conclusion arrived at by us pertaining to the applicability of the Air Act when construction activity commences in respect of shopping malls and commercial shopping complexes for the reason, prior consent to establish the same is required on the language of Section 21 of the Air Act in view of the expanded definition of the expression „industrial plant‟. But, for residential complexes, we hold that neither to establish nor to operate, (in fact the concept of „to operate‟ is not even applicable to a residential complex), any permission is required under the Air Act. 35. The learned Single Judge has held that neither the language of Section 33A of the Water Act nor the language of Section 31A of the Air Act contemplates the power on the State Pollution Boards to levy any penalty. 36. The learned Single Judge has noted the decisions reported as 1975 (2) SCC 22 Khemka & Co. (Agencies) Pvt. Ltd. vs. LPA 895/2010 & connected matters Page 34 of 38 State of Maharashtra, 1994 (4) SCC 276 J.K.Synthetics Ltd. & Birla Cement Works vs. Commercial Taxes Officer and 1997 (6) SCC 479 India Carbon Ltd. vs. State of Assam to opine that power to levy penalty has to be conferred by a substantive provision in the enactment. 37. We concur with the reasoning of the learned Single Judge in paras 58 to 64 of the impugned decision and thus do not elaborate any further, but would additionally highlight that the power to issue directions under Section 33A of the Water Act and the power to issue directions under Section 31A of the Air Act, on their plain language, does not confer the power to levy any penalty. We would further highlight that under Chapter VII of the Water Act, and under Chapter VI of the Air Act penalties and procedure to levy the same have been set out. A perusal of the provisions under the Water Act would reveal that penalties can be levied as per procedure prescribed and only Courts can take cognizance of offences under the Act and levy penalties, whether by way of imprisonment or fine. Similar is the position under the Air Act. The legislature having enacted specific provisions for levy of penalties and procedures to be followed has specifically made the offences cognizable by Courts and the power to levy penalties under both Acts has been vested in the Courts. The role of the Pollution Control Boards is to initiate proceedings before the Court of Competent Jurisdiction and no more. 38. We would be failing not to note that on the issue of a delegatee not being empowered (by law) to further sub-delegate the delegated power, learned counsel for DPCC conceded to said LPA 895/2010 & connected matters Page 35 of 38 position and thus we leave undisturbed the view taken by the learned Single Judge on the subject. 39. Since our reasoning aforesaid results in the finding, by way of interpreting the provisions in the Water Act and the Air Act, as requiring prior consent to establish and operate shopping malls and commercial shopping complexes and the provisions being not applicable to residential complexes, we declare void actions initiated by DPCC pertaining to residential complexes and we further hold that said writ petitions are allowed in terms of the prayers made. The impugned decision(s) by the learned Single Judge(s) qua residential complexes is set aside. Qua shopping malls and commercial shopping complexes, since we have held that prior permission is required under both Acts to establish shopping malls and commercial shopping complexes as also to operate them and noting that even DPCC was not too sure of the legal position and thus misinformed a few applicants that no permission was required and qua most persons permitted them to commence and complete construction of shopping malls and commercial shopping complexes, the question which now needs to be answered is: Whether, pertaining to the Water Act, Sub-Section 5 of Section 25 is the answer to what needs to be done and in the absence of a similar provision in the Air Act, what action needs to be directed to be taken. 40. The language of Sub-Section 5 of Section 25 of the Water Act makes it plain clear that the only solution to a situation of a building being constructed to establish an industry, operation or process without obtaining prior consent of the State Pollution LPA 895/2010 & connected matters Page 36 of 38 Control Board is the power of the Board to serve upon the person concerned a notice imposing such conditions as might have been imposed on an application seeking prior consent; and we find that the learned Single Judge has correctly so opined and has rightly issued the direction that the only way out, pertaining to the Water Act, is to permit DPCC to inspect the shopping malls and the shopping commercial complexes and if it is found that pertaining to discharge of sewage from these buildings any steps are required to prevent water pollution, DPCC would be authorized to issue notices requiring the owner of the building to take steps in terms of the notice issued. Pertaining to the Air Act, notwithstanding there being no similar provision, but the concept of a post decisional hearing may be made applicable with the modification that no hearing would be required inasmuch as there is no decision, but DPCC should be empowered to inspect the shopping malls and the shopping commercial complexes and pertaining to air pollution, if any deficiencies are found, to notify the same to the owner requiring corrective action to be taken. Needless to state, if the owners of the buildings do not take corrective action, DPCC would always have the power to file criminal complaints before the Courts of Competent Jurisdiction, which Courts would alone have the power to impose fine and additionally impose sentence of imprisonment upon the offending persons. 41. On the issue of Air Pollution, we would like to pen a post-script pertaining to shopping complexes and shopping malls for the reason the only activity of air pollution in these buildings LPA 895/2010 & connected matters Page 37 of 38 would be through the air conditioning plants and generators installed to supply electricity to the buildings in case of power cuts, for the reason the trade of sale and purchase of goods in these complexes does not entail any activity which causes air pollution. We find that pertaining to DG sets, permissions in any case have to be obtained from DPCC if the capacity of the DG set is beyond a prescribed wattage and thus DPCC may suitably reconsider all shopping complexes and shopping malls where consent of DPCC has been obtained with respect to DG sets installed as also air-conditioning plants installed in the buildings, for if for the DG sets and air-conditioning plants, sanctions have already been obtained, nothing further remains to be got sanctioned under the Air Act. 42. In a few cases, we find that since DPCC was not permitting the buildings to be occupied, under protest, the owners paid the penalty to DPCC and have immediately approached the Court seeking refund and the same has been ordered for the reason neither under the Water Act nor under the Air Act there exists any power in DPCC to levy penalty or impose conditions of furnishing bank guarantee. The decision of the learned Single Judge is correct in directing the bank guarantees to be discharged and penalties levied to be refunded for the reason the said act of DPCC is ultra-vires its power under the two statutes and the levy of penalty is without any authority of law. In the decision reported as 1997 (5) SCC 536 Mafatlal Industries Ltd. & Ors. vs. UOI & Ors., under writ jurisdiction refund can be directed where the levy is without jurisdiction and the same would include a penalty levied LPA 895/2010 & connected matters Page 38 of 38 without any jurisdiction. In the instant case the penalty levied is unconstitutional being not sanctioned by any power vested in DPCC either under the Water Act or the Air Act. The impugned decisions where penalty levied has been directed to be refunded are upheld. 43. The appeals filed by DPCC are dismissed and the cross objections filed are allowed in terms of paras 27, 33, 34 and 39 above. 44. We leave the parties to bear their own costs. 45. All interim orders stand vacated. (PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE JANUARY 23, 2012 dk

service matter = The Division Bench further noted that the Board of Technical Education had not granted any recognition to the respondent No.3 IPHH or for that matter to any Institute for the purpose of awarding diplomas in the field in question i.e. OT Technicians or as Medical Laboratory Technician. However, it was held that AICTE has no concern in the matter and there was no statutory body charged with any statutory duty and no legislation covering the field requiring such institute to obtain recognition. It was thus held that since the Government of NCT of Delhi and the Board of Technical Education which is but a department of the Government of NCT of Delhi had not notified any Rules or Regulations pertaining to grant of recognition to institutes awarding diplomas in public health & hygiene, the respondent no.2 GBPH could not have refused joining to the selected candidates for the reason of their qualification being not recognized by the AICTE or the Board of Technical Education. Further finding that the appellants / petitioners therein had for considerable time been working in government hospitals though on ad-hoc basis, directions were issued for their employment from the date of their joining on ad-hoc basis.

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : APPOINTMENT MATTER Date of decision: 23rd December, 2011 LPA 1091/2011 GEETA VERMA ....Appelant Through: Mr. Nimish Chib, Adv. Versus GNCTD & ORS. .... Respondents Through: Ms. Ferida Satarawala & Ms. Rachna Saxena, Advs. for GNCTD. AND LPA 1097/2011 MOHAN LAL ....Appellant Through: Mr. Nimish Chib, Adv. Versus GNCTD & ORS. .... Respondents Through: Ms. Ferida Satarawala & Ms. Rachna Saxena, Advs. for GNCTD. CORAM :- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW JUDGMENT RAJIV SAHAI ENDLAW, J. 1. These intra court appeals impugn dismissal more than six years ago i.e. on 12.05.2005 of W.P.(C) No.3512/2003 and W.P.(C) No.3758/2003 respectively preferred by the appellants. 2. The appellants claim to have completed their diploma course in Medical Laboratory Technology and in Operation Theatre Technology respectively from the respondent No.3 Institute of Public Health & Hygiene (IPHH) and had participated in the selection process for appointment as OT Technicians in the respondent No.2 Govind Ballabh Pant Hospital (GBPH) and though were found successful and issued appointment letters, were not permitted to join on the ground that the respondent No.3 IPHH from which they had obtained their qualification was not recognized by the All India Council for Technical Education (AICTE). The writ petitions aforesaid were filed by the appellants seeking declaration as to the validity of their qualification and direction to the respondent No.2 GBPH to accept the candidature of the appellants and appoint them to the post of OT Technicians in the said Hospital. 3. The aforesaid writ petitions preferred by the appellants were taken up for decision as aforesaid on 12.05.2005 along with several other writ petitions. The writ petitions were dismissed holding that no error could be found in the refusal of the respondent No.2 GBPH to allow appellants to join since the respondent No.3 IPHH from which the appellants had obtained their qualification did not possess approved accreditation and that the respondent No.2 GBPH could not be directed to act on such Diplomas / Degrees as the same would be detrimental to the societal interest as question of public health was involved. 4. Intra court appeals were preferred against the common judgment dated 12.05.2005 (supra) though not by the appellants. Some such LPAs being LPA Nos.1653-58/2005 were dismissed by the Division Bench of this Court on 01.08.2005. The matter was taken further to the Supreme Court. The Supreme Court vide order dated 16.03.2009 in Civil Appeal Nos.1697- 1699/2009, on the argument that AICTE was not authorized to grant recognition to such diplomas / degrees, set aside the judgment of the Division Bench of this Court and remanded the matter to the Division Bench for decision afresh. On a further argument that the Board of Technical Education would be competent authority in this regard, the same was also directed to be impleaded before the High Court. 5. On such remand, LPA Nos.1653-58/2005 along with W.P.(C) Nos.1629/2010, 5396-98/2005 & 18037/2006 entailing similar controversy were taken up together for consideration and disposed of vide common judgment dated 29.11.2010 of the Division Bench. The Division Bench noticed that of the 12 petitioners in the writ petition from which LPA Nos.1653-58/2005 had arisen, only six had joined in the appeal and clarified that the order would enure to the credit of the six appellants only. The Division Bench further noted that the Board of Technical Education had not granted any recognition to the respondent No.3 IPHH or for that matter to any Institute for the purpose of awarding diplomas in the field in question i.e. OT Technicians or as Medical Laboratory Technician. However, it was held that AICTE has no concern in the matter and there was no statutory body charged with any statutory duty and no legislation covering the field requiring such institute to obtain recognition. It was thus held that since the Government of NCT of Delhi and the Board of Technical Education which is but a department of the Government of NCT of Delhi had not notified any Rules or Regulations pertaining to grant of recognition to institutes awarding diplomas in public health & hygiene, the respondent no.2 GBPH could not have refused joining to the selected candidates for the reason of their qualification being not recognized by the AICTE or the Board of Technical Education. Further finding that the appellants / petitioners therein had for considerable time been working in government hospitals though on ad-hoc basis, directions were issued for their employment from the date of their joining on ad-hoc basis. 6. The appellants herein claim that they were under the impression that they were also parties to the appeals preferred before the Division Bench and SLPs preferred before the Supreme Court and did not realize that they had not been so impleaded and realized so only when they were denied the benefit of the judgment on the ground of being not parties thereto. They have hence preferred these appeals with an application for condonation of delay. They claim to be similarly placed as the petitioners / appellants in whose favour the judgment dated 29.11.2010 has been passed and claim the same relief. Reliance, for condonation of delay, is placed on (i) Haribhai Lakhmanbhai Seedhav v. State of Gujarat AIR 2010 SC 599; (ii) Ram Bilas Mahto v. Union of India 2007 ACJ 2484; (iii) N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3222; (iv) Parimal v. Veena @ Bharti 2011 (1) CCC 100 (SC); (v) Smita Chaudhary v. Uma Devi 2008 (100) DRJ 293; (vi) Dr. Munjula Krippendorf Pathak v. Vijay Dixit 146 (2008) DLT 566 (DB); and (vii) Lajpat Rai v. State of Punjab AIR 1981 SC 1401. 7. We may notice that notwithstanding the finding in the judgment dated 29.11.2010 of the refusal of the respondent No.2 GBPH to allow the selected candidates to join for the reason of the respondent No.3 IPHH being not a recognized institute being wrong, the directions as issued owe their existence to the appellants / petitioners therein being already employed on ad-hoc basis in OTs in the Government hospitals. This is evident from the Division Bench having observed “This reassures us that as a result of our decision, untrained persons would not be appointed. We note that three persons have been successfully working for the last seven to eight years…….. nothing unworthy in their work has been noted.” 8. We are not convinced with the explanation given by the appellants for the delay. The appellants, without signing the Vakalatnama in favour of the Advocate for preferring the appeal / SLP and without paying advocate’s fee could not have presumed that they were parties to the litigation. They are clearly trying to take advantage of the labour of the others in pursuing the matter further; the appellants had accepted the judgment of the learned Single Judge and had not chosen to pursue the matter further. 9. Be that as it may, the appellants having nevertheless filed the writ petitions, we are of the opinion that if similarly situated as the petitioners / appellants in the judgment dated 29.11.2010, ought not to be deprived of the benefit thereof and if the same were to be permitted, would result in discrimination and arbitrariness within the meaning of Article 14 of the Constitution of India. We have as such with the consent of the counsels heard the matter finally. 10. As aforesaid what prevailed with the Division Bench, in judgment dated 29.11.2010, to issue the directions as aforesaid, was the working since long of the petitioners / appellants therein at the post to which they were held to have been wrongly denied appointment. The appellant in LPA No.1091/2011 has pleaded that she has been working on ad-hoc basis for about two years in the Institute of Liver & Billiary Sciences but has not produced any documents in this regard. It has also not been pleaded as to whether the said Institute is of the Government of NCT of Delhi. We find from the internet that the same was established by the GNCTD as an Autonomous Institute under the Societies Registration Act, 1860. The appellant in LPA No.1097/2010 has pleaded that he has been working on adhoc basis for about ten years at Dr. Baba Saheb Ambedkar Hospital of the Government of NCT of Delhi but has again not produced any document in this regard. However, since both appellants plead that they are at par with the petitioners / appellants in judgment dated 29.11.2010 and were considered by their respective employers for grant of benefit of the said judgment and were denied the same only for the reason of being not parties to the said judgment, we dispose of these appeals with a direction to the Institute of Liver & Billiary Sciences (if of the Government of NCT of Delhi) and to the Dr. Baba Sahib Ambedkar Hospital to consider the case of the appellants for grant of benefit in terms of the said judgment dated 29.11.2010 subject to the appellants being found to be in the same position as petitioners / appellants in judgment dated 29.11.2010 i.e. having not rusted over the years in the qualification obtained by them from respondent No.3 IPHH and if found to have in the interregnum performed the same work for which they were selected in the year 2002. If that is so, they would be entitled to regularization and seniority with retrospective effect as per the seniority position in the select panel and would also be granted increments from the deemed date of regular appointments which would be the date when they had been employed on ad-hoc basis in the hospitals of Government of NCT of Delhi. The appeals are allowed but on the aforesaid terms. Sd/- RAJIV SAHAI ENDLAW, J Sd/- ACTING CHIEF JUSTICE

the recruitment process for the post of a Homoeopathic Officer for a Gram Panchayat Level Dispensary situated at Jhilu–I Gram Panchayat under Mongalkote Block in the district of Burdwan= the Guidelines for engagement of part-time Homoeopathic doctors in the Gram Panchayat Level Dispensaries are not related to the Guidelines for engagement of ‘AYUSH’ doctors for Gram Panchayat Level Dispensaries which falls under the National Rural Health Mission. As such, the ad-interim prayer of the petitioner is not entertained since this Court is, prima facie, satisfied that the Guidelines for recruitment of ‘AYUSH’ doctors is under a separate Scheme altogether which has no rational nexus with the Guidelines as contained in the notification dated 22nd February, 2010

1 43 11.01.2012 pg. WP No. 22635 (W) of 2011 Dr. Abdul Basar Vs. State of West Bengal & Ors. Mr. Subir Sanyal Mr. Saikat Banerjee Md. Hasanuz Zaman … For the petitioner Mr. Ram Mohan Pal … For the State Supplementary affidavit filed by the petitioner in Court today be kept on record. The petitioner participated in the recruitment process for the post of a Homoeopathic Officer for a Gram Panchayat Level Dispensary situated at Jhilu–I Gram Panchayat under Mongalkote Block in the district of Burdwan and was asked to appear for an interview for his engagement as an ‘AYUSH’ doctor on 16th December, 2011, at the office of the concerned Block Development Officer. Subsequently, the petitioner came to learn that he was selected on merit as an ‘AYUSH’ doctor for Jhilu–I Gram Panchayat. Later, however, the petitioner came to learn further that despite being selected on merit, his name would not be forwarded by the concerned Block 2 Development Officer to the higher authorities for ratification and for according approval since he had crossed the upper age limit as prescribed in a Guideline dated 22nd February, 2010, issued by the Chief Executive Officer, West Bengal State Rural Development Agency. Relying on a judgment of the Supreme Court in Dr. Rajinder Singh Vs. State of Punjab & Ors. reported in (2001) 5 SCC 482, the learned advocate for the petitioner submits that it is the settled proposition of law that no Government Order or Notification or Circular or Guidelines can be a substitute of a Statutory Rule framed under authority of law. He further submits that in the facts of the instant case there is already a statutory ‘Scheme’ prevailing since 1988, which had been brought into effect by a notification dated 23rd May, 1988, issued by the Department of Health and Family Welfare, Government of West Bengal, in exercise of power conferred by sub-section (3) of section 160, read with section 212, of the West Bengal Panchayat Act, 1973. He also submits that in this statutory ‘Scheme’ which is still in force, it has been categorically stated that there shall not be any upper age limit in case of recruitment of parttime Homoeopathic doctors for the Gram Panchayats in 3 West Bengal, provided, it is ensured that the selected candidates are physically fit and mentally alert for performing their duties. It appears, prima facie, that the Guidelines for engagement of part-time Homoeopathic doctors in the Gram Panchayat Level Dispensaries are not related to the Guidelines for engagement of ‘AYUSH’ doctors for Gram Panchayat Level Dispensaries which falls under the National Rural Health Mission. As such, the ad-interim prayer of the petitioner is not entertained since this Court is, prima facie, satisfied that the Guidelines for recruitment of ‘AYUSH’ doctors is under a separate Scheme altogether which has no rational nexus with the Guidelines as contained in the notification dated 22nd February, 2010. However, the matter may be finally decided on affidavits. Accordingly, let affidavit-in-opposition be filed within three weeks from date. Reply, if any, a fortnight thereafter. Let this matter appear for further consideration under the heading “For Final Disposal” in the monthly combined 4 list to be published for the month of March, 2012. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. (Biswanath Somadder, J.)